      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-07-00513-CR



                                    Froylan Padilla, Appellant

                                                 v.

                                   The State of Texas, Appellee



    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
     NO. D-1-DC-06-204578, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING



                             MEMORANDUM OPINION


                  A jury found appellant Froylan Padilla guilty of engaging in organized criminal

activity and assessed his punishment at nine years’ imprisonment. See Tex. Penal Code Ann. § 71.02

(West Supp. 2008). Appellant contends that the district court erred by overruling his motion for a

severance, that his trial counsel rendered ineffective assistance, and that the evidence is legally

and factually insufficient to sustain the verdict of guilt. We overrule these issues and affirm

the conviction.


                                         BACKGROUND

                  On the evening in question, several people including appellant and his friend

Rodolfo Orive were gathered on the grounds of an Austin middle school practicing dances for an

upcoming quinceanera. A car drove past the school, and hand signs were exchanged between the

occupants of the car and Orive. The driver of the car, Vidal Lopez, told his companions that he had
had problems with Orive in the past. Although his friends urged him to drive on, Lopez decided to

stop and confront Orive. When they saw Lopez stop, appellant, Orive, and Victor Sarmiento ran to

Orive’s car, retrieved a pistol belonging to Sarmiento, and returned to the rehearsal scene.

                After stopping, Lopez and two of his companions approached the quinceanera group

and announced that Lopez wanted to fight Orive. Orive accepted the challenge. It was agreed that

this would be a “clean fight” between the two using no weapons. The combatants and a number of

spectators moved to the rear parking lot of the school, and the fight commenced. Lopez soon got

the upper hand, forcing Orive to his knees and placing him in what was described as a head lock or

choke hold. Some witnesses testified that Orive’s face was turning purple and that he appeared to

have trouble breathing. Another witness testified that Orive’s life did not appear to be in danger,

although he was clearly losing the fight. Orive himself testified, “I couldn’t talk, I couldn’t breathe,

I couldn’t do anything. I was afraid for my life.”

                At this point, appellant walked over to the two fighters, pointed Sarmiento’s pistol

at Lopez, and ordered him to release Orive. Lopez complied with this order. Orive then stood, took

the pistol from appellant, and fatally shot Lopez just below his right eye. Orive testified that he shot

Lopez because he was “afraid for my life.” According to Orive, Lopez told him that “if we would

not shoot him, he was going to do it to us,” and put his hand behind his back. Orive testified that

he believed that if he did not shoot Lopez, Lopez would shoot him. Other witnesses testified that

they did not hear Lopez say anything to Orive, and there is no evidence that Lopez or anyone with

him was armed. One witness testified that Orive told Lopez “you are now f---ed” before

shooting him.



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               Appellant and Orive left the scene in a black car and drove to a house a few blocks

away, where they were seen speaking to a man and walking to the side of the house before running

away on foot. Police later found several bullets under the air conditioning unit at the side of this

house. Near midnight, appellant and Orive went to the home of Luz Marie Gallego, the mother of

Orive’s former girlfriend. Gallego testified that Orive “looked bad” and that “[h]e couldn’t speak

very well.” Orive told Gallego that he had “killed a guy” and was thinking of going to Mexico.

Appellant and Orive were arrested later that night when a Jeep Cherokee in which they were

occupants was stopped for speeding. Both men gave false names to the officers. Several packed

suitcases were found in the Jeep.


                                 SUFFICIENCY OF EVIDENCE

               The indictment alleged and the jury found that appellant assaulted Lopez with a

deadly weapon as a member of a criminal street gang. See id. §§ 22.02(a)(2) (aggravated assault),

71.02(a)(1) (engaging in organized criminal activity). Appellant contends that the evidence is

factually insufficient to support the jury’s finding that he committed an unjustified aggravated assault

and legally insufficient to support the jury’s finding that he was a member of a criminal street gang.


Aggravated Assault

               The jury charge included an instruction on the defense of third persons. See id. § 9.33

(West 2003). Appellant urges that the evidence is factually insufficient to support the jury’s finding

that he was not justified in assaulting Lopez in defense of Orive.




                                                   3
               When there is a challenge to the factual sufficiency of the evidence to support the

rejection of a defense, we apply the usual factual sufficiency standard of review. Zuliani v. State,

97 S.W.3d 589, 595 (Tex. Crim. App. 2003). In a factual sufficiency review, all the evidence is

considered equally, including the testimony of defense witnesses and the existence of alternative

hypotheses. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Orona v. State,

836 S.W.2d 319, 321 (Tex. App.—Austin 1992, no pet.). Although due deference must be accorded

the fact finder’s determinations, particularly those concerning the weight and credibility of the

evidence, the reviewing court may disagree with the result in order to prevent a manifest injustice.

Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407

(Tex. Crim. App. 1997). The evidence will be deemed factually insufficient if the evidence

supporting the jury’s finding is so weak as to make the finding clearly wrong or manifestly unjust,

or if the finding is against the great weight and preponderance of the available evidence. See

Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Johnson, 23 S.W.3d at 11.

               A person is justified in using force or deadly force against another to protect a third

person if, under the circumstances as the actor reasonably believes them to be, the actor would be

justified in using force or deadly force to protect himself against the unlawful force or deadly force

he reasonably believes to be threatening the third person he seeks to protect. Tex. Penal Code

Ann. § 9.33. In other words, appellant was justified in using force or deadly force against Lopez in

defense of Orive to the extent that Orive was justified in using such force against Lopez in his own

defense. Hughes v. State, 719 S.W.2d 560, 564 (Tex. Crim. App. 1986).




                                                  4
               The use of force against another is not justified if the actor consented to the exact

force used or attempted by the other. Tex. Penal Code Ann. § 9.31(b)(3) (West Supp. 2008).

Appellant argues that although Orive agreed to fight Lopez, he did not agree to Lopez’s use of a

choke hold that left Orive unable to speak or breathe. The evidence was undisputed, however, that

the parties agreed only that no weapons would be used in the fight. There is no basis in the evidence

for appellant’s assertion that Lopez and Orive had agreed that the fight would be over, or would be

temporarily suspended, if one of the fighters fell to the ground. It was neither manifestly unjust nor

against the great weight of the available evidence for the jury to conclude that Orive, by agreeing to

fight Lopez, consented to the exact force used by Lopez in the fight.

               Appellant also seeks to invoke the presumption that the use of force is reasonable if

the actor knew or had reason to believe that the person against whom the force was used was

committing or attempting to commit murder. Id. § 9.31(a)(1)(A). This presumption was added to

section 9.31 effective September 1, 2007, and was not in effect at the time of this offense. See Act

of Mar. 20, 2007, 80th Leg., R.S., ch. 1, §§ 2, 5, 2007 Tex. Gen. Laws 1, 2.

               Considering all the evidence in a neutral light, we hold that it was not clearly wrong

or manifestly unjust for the jury to find that appellant was not justified in assaulting Lopez with a

deadly weapon in defense of Orive. Moreover, this finding was not against the great weight and

preponderance of the available evidence.


Gang Membership

               Appellant contends that the evidence is legally insufficient to support the

jury’s finding that he assaulted Lopez as a member of a criminal street gang. We may disturb the

                                                  5
jury’s finding only if, after reviewing the evidence in the light most favorable to the finding, we

conclude that no rational trier of fact could have found this element of the offense beyond a

reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 324 (1979); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

               A criminal street gang is three or more persons having a common identifying sign or

symbol or an identifiable leadership who continuously or regularly associate in the commission of

criminal activities. Tex. Penal Code Ann. § 71.01(d) (West 2003). The State sought to prove that

appellant and Orive were members of an Austin gang known as the South Side Crips, or simply

Crips. Detective David Fugitt, the homicide detective in charge of the investigation of this incident,

testified that he was familiar with the South Side Crips. The detective testified that the Crips had

more than three members, had common signs and identifying marks, and were regularly involved

in criminal activity in Travis County. Appellant argues that “merely saying it doesn’t necessarily

make it so,” but we must assume that the jury found the officer’s testimony to be credible.

               Persons who witnessed the incident at the middle school testified that appellant,

Orive, and Sarmiento were wearing blue clothing. Austin police officers testified that blue is a color

favored by the South Side Crips. Lopez was wearing red shoes, suggesting that he was a member

of a different gang. As one witness who was present at the quinceanera rehearsal and saw the fight

testified, “[Y]ou could tell kind of that it was gang-related since they were wearing blue and the

other guy was wearing red.” One of the persons who was in the car with Lopez testified that on the

night following the shooting, Orive called him on the telephone and told him that “I shouldn’t say

anything and that I should tell my friends that they should say nothing either because if somebody

went down on his side they were also going to go down on our side.”

                                                  6
               Fugitt testified that appellant was wearing blue clothing and carrying a blue bandanna

at the time of his arrest.1 Another officer testified that members of the Crips wore blue bandannas

to show their gang affiliation. One of the suitcases found with appellant in the Jeep Cherokee

contained, in addition to a number of items of blue clothing, a T-shirt (State’s exhibit 17) on which

was written the names “Froy” and “Jackie.” Jacqueline Diaz was another person in the Jeep with

appellant. This T-shirt also had the word “slob” and the initials “BK” on it. Fugitt testified that

“slob” is a derogatory term for a member of the Bloods gang and “BK” stands for “blood killer.”

Also printed on this shirt was the number 78704 and the words “South Side.” Fugitt testified that

78704 is a postal code for South Austin.

               A sweatshirt (State’s exhibit 18) was also found in the Jeep. Printed on this shirt was

a symbol with the words “Dove Springs” surrounding a hand, the number 27, and a flying dove.

Fugitt testified that the number 27 was short for 78727, another South Austin postal code in which

the Dove Springs neighborhood is located. The detective said that the hand was making a gesture

that meant “BK” or “blood killer.” In State’s exhibit 21, a photograph of appellant and Orive,

Orive appears to be making the same hand gesture.2




       1
         The record contains a copy of a photograph of appellant taken following his arrest
(State’s exhibit 20), but the copy is not in color.
   2
      There was additional evidence regarding Orive’s membership in the South Side Crips. An
officer who searched Orive’s bedroom following his arrest testified that it was decorated
predominantly in blue. The officer recalled finding seven or eight blue bandannas in
Orive’s bedroom. In a notebook, Orive had written “vistazo Bloods,” which the officer translated
as “looking for blood,” and “BK all day every day.” This officer also testified that “BK” was
shorthand for “blood killer,” a term commonly used by the Crips. The trial court instructed the jury
to consider this evidence only with respect to Orive’s guilt.

                                                 7
               Viewing this evidence in the light most favorable to the verdict, we conclude that a

rational trier of fact could conclude beyond a reasonable doubt that appellant was a member of the

South Side Crips and that the Crips are a criminal street gang.             The evidence is legally

sufficient to support the jury’s determination that appellant assaulted Lopez as a member of a

criminal street gang.


                                           SEVERANCE

               Orive was indicted for murdering Lopez, and he and appellant were tried together

after appellant’s motion for a severance was denied. Appellant contends that the trial court erred by

denying the severance.

               Upon a timely motion supported by evidence, a defendant is entitled to a severance

if his co-defendant has a previous admissible conviction or if a joint trial would prejudice the moving

defendant. Tex. Code Crim. Proc. Ann. art. 36.09 (West 2007); Qualley v. State, 206 S.W.3d 624,

631 (Tex. Crim. App. 2006). It is undisputed that appellant’s motion to sever was timely. It is also

undisputed that Orive had no admissible previous convictions. Therefore, the issue is whether

appellant met his burden of demonstrating that he would be prejudiced by a joint trial.

               To establish prejudice, a defendant must show a serious risk that a specific trial right

would be compromised by a joint trial, or that a joint trial would prevent the jury from making a

reliable judgment about guilt or innocence, and that the problem could not be adequately addressed

by lesser curative measures, such as a limiting instruction. Qualley v. State, 206 S.W.3d 624, 636

(Tex. Crim. App. 2006). Appellant argues that he was entitled to a severance as a matter of law

because he demonstrated that there was a substantial risk that the jury would find him guilty by



                                                  8
association with Orive. Alternatively, appellant argues that the trial court abused its discretion by

denying the severance because evidence was admitted at the joint trial that would not have been

admissible if appellant had been tried separately. We conclude that appellant did not show himself

entitled to a severance and that the trial court did not abuse its discretion by denying the

severance motion.3

                In his motion to sever, appellant urged that he would be prejudiced by a joint trial

with Orive “because the quantity of evidence against [Orive] is grossly disproportionate to that

against [appellant].” At the hearing on the motion, appellant’s counsel repeated this contention and

urged that the evidence regarding Orive’s murder of Lopez “[had] nothing to do” with the offense

for which appellant was on trial. After the prosecutor briefly summarized the facts, the court

expressed the view that even if appellant were tried separately, the fact that Orive murdered

Lopez would be admissible to place appellant’s offense in context. The court denied the motion on

this basis.


    3
       According to the leading commentary on Texas criminal procedure, the court of criminal
appeals has long regarded a co-defendant’s previous admissible conviction as the only mandatory
ground for severance under article 36.09 and has treated the prejudice provision as being
discretionary with the trial court. 43 George E. Dix & Robert O. Dawson, Texas Practice:
Criminal Practice and Procedure § 33.41 (2d ed. 2001) (citing Robinson v. State, 449 S.W.2d 239,
240-41 (Tex. Crim. App. 1969); see also Mulder v. State, 707 S.W.2d 908, 915 (Tex. Crim. App.
1986). More recently, some opinions have suggested that prejudice to the moving defendant may
be either a mandatory or a discretionary ground for severance under the statute, depending on the
nature or degree of the prejudice. See, e.g., Marsh v. State, 115 S.W.3d 709, 717
(Tex. App.—Austin 2003, pet. ref’d) (stating that absent evidence of prejudice to one defendant in
joint trial or evidence that one defendant has prior admissible conviction, grant of severance is
discretionary; discretion is abused only if movant satisfies heavy burden of showing clear prejudice);
King v. State, 17 S.W.3d 7, 16-17 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (same). But
see Peterson v. State, 961 S.W.2d 308, 310 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (stating
that severance pursuant to article 36.09 is not matter of right but rests within sound discretion of
trial court).

                                                  9
               Both of appellant’s arguments—that he was entitled to a mandatory severance and

that the trial court abused its discretion—are premised on the assertion that Orive’s murder of Lopez

was irrelevant to appellant’s guilt and would have been inadmissible had appellant been tried

separately. But as the trial court noted at the hearing on the severance motion, appellant’s assault

of Lopez and Orive’s murder of Lopez with the same pistol were so closely interrelated that they

formed an indivisible criminal transaction; in other words, the fact of the murder would have been

admissible at a separate trial as same-transaction contextual evidence. See Prible v. State,

175 S.W.3d 724, 731-32 (Tex. Crim. App. 2005). Although some of the evidence regarding the

murder, such as the autopsy report, and some of the evidence regarding Orive’s gang ties and threats

to witnesses might not have been admitted had appellant been tried separately, much of this evidence

was introduced with a limiting instruction so as to avoid prejudicing appellant. See supra, note 2.

Appellant points to no evidence that the limiting instructions were ineffective or that the jury was

unable to distinguish between the evidence of Orive’s guilt and the evidence of appellant’s guilt.

Appellant did not show that there was a serious risk that a specific trial right would be compromised

by a joint trial, or that a joint trial would prevent the jury from making a reliable judgment about his

guilt or innocence. The trial court’s denial of the requested severance was not an abuse of discretion

or otherwise erroneous.


                                EFFECTIVENESS OF COUNSEL

               Appellant’s final contention is that his trial counsel rendered ineffective assistance.

To prevail on this claim, appellant must show that counsel made such serious errors that she was not

functioning effectively as counsel and that these errors prejudiced his defense to such a degree that

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he was deprived of a fair trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984);

Hernandez v. State, 988 S.W.2d 770, 771-72 (Tex. Crim. App. 1999). In reviewing a claim of

ineffective assistance, we must indulge a strong presumption that counsel’s conduct fell within the

wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim.

App. 1994). To overcome this presumption, any allegation of ineffectiveness must be firmly

founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness.

Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).

                Appellant argues that his trial counsel was ineffective in three respects. First, he

complains that counsel declined the trial court’s offer to instruct the jury on the lesser included

offense of aggravated assault. There is no evidence in the record as to why counsel did not want the

lesser included offense instruction, but it is likely that she was pursuing an all-or-nothing strategy.

See Ex parte White, 160 S.W.3d 46, 55 (Tex. Crim. App. 2004); Shanklin v. State, 190 S.W.3d 154,

161 (Tex. App.—Houston [1st Dist.] 2005), pet. dism’d, improvidently granted, 211 S.W.3d 315,

316 (Tex. Crim. App. 2007). Appellant complains that this strategy was a mistake because the State

had failed to prove that he was a member of a criminal street gang. We have already found the

evidence sufficient in this regard, but if the State had in fact failed to prove that appellant was a

member of a gang, counsel’s strategy would have benefitted appellant because the jury, or this Court

on appeal, would have been required to render an acquittal. See Haynes v. State, No. PD-1923-06,

2008 Tex. Crim. App. LEXIS 569, at *1 (Tex. Crim. App. Apr. 30, 2008); Collier v. State,

999 S.W.2d 779, 782 (Tex. Crim. App. 1999). Although, under the circumstances as they actually

were, a different attorney might have accepted the trial court’s offer, we cannot say that no

reasonable professional attorney would have chosen the strategy employed by appellant’s counsel

in this case.

                                                  11
               Next, appellant urges that his trial counsel was ineffective because she failed to object

to an improper jury argument by the prosecutor. While discussing appellant’s claim that he assaulted

Lopez in defense of Orive, the prosecutor argued, “[I]t’s not enough for him to say I was protecting

my friend. The law is very specific on what must occur to be entitled to a justification. Specifically,

the use of deadly force can only be used when necessary to the degree necessary, when and to the

degree you believe it to be necessary.” The prosecutor added, “But there is more. It has to be against

the use or attempted use of unlawful deadly force.” Appellant argues that the prosecutor was

mistaken in characterizing appellant’s conduct as the use of deadly force. The State disputes this,

asserting that a person who points a loaded pistol at another uses deadly force.

               Neither appellant nor the State mentions the trial court’s instruction to the jury that

“[a] threat to cause death or serious bodily injury by the production of a weapon, as long as the

defendant’s purpose is limited to creating an apprehension that he will use deadly force if necessary,

does not constitute the use of deadly force.” See Tex. Penal Code Ann. § 9.04 (West 2003). In light

of this instruction, we are confident that any error in the prosecutor’s argument did not effect the

jury’s verdict. Moreover, we must assess the totality of defense counsel’s representation, rather than

isolated acts or omissions. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986);

Oestrick v. State, 939 S.W.2d 232, 237 (Tex. App.—Austin 1997, pet. ref’d). Considering counsel’s

performance as a whole, her failure to object to this one alleged misstatement by the prosecutor did

not render her overall representation of appellant ineffective.

               Finally, appellant urges that his counsel was ineffective because she did not perfect

error regarding the State’s failure to advise him of his right to contact the Mexican consulate

following his arrest. See Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999). This



                                                  12
contention rests on two factual assumptions: (1) that appellant is a citizen of Mexico, and (2) that

appellant was not advised of his right to notify the Mexican consulate following his arrest. The State

argues that neither of these facts is established by the record.

                We believe that the record substantiates appellant’s status as a foreign national, if not

his claim to be a citizen of Mexico. Appellant’s mother, who testified at the punishment stage,

referred to appellant as an “immigrant.”        During his own punishment testimony, appellant

acknowledged in response to a question from the prosecutor that he was “subject to deportation if

[he is] released from jail.” There is, however, no evidence that appellant was not told of his right

to seek assistance from his consulate following his arrest. Counsel cannot be ineffective for failing

to perfect a nonexistent error. Moreover, even if a violation of the Vienna Convention is assumed,

appellant does not develop any argument as to how the outcome of his trial would have been

different had his lawyer objected to the violation. See Cardenas v. State, 30 S.W.3d 384, 391

(Tex. Crim. App. 2000).

                On this record, appellant has not met his burden of persuasion regarding the alleged

ineffectiveness of his trial counsel. Appellant’s contention that he was denied effective assistance

of counsel at trial is overruled.

                The judgment of conviction is affirmed.

                                                ___________________________________________

                                                Jan P. Patterson, Justice

Before Justices Patterson, Waldrop and Henson

Affirmed

Filed: December 31, 2008

Do Not Publish

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