                            NUMBER 13-09-00109-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


ADRIAN PINA CONTRERAS,                                                      Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 103rd District Court
                        of Cameron County, Texas.


                         MEMORANDUM OPINION

              Before Justices Rodriguez, Benavides, and Vela
               Memorandum Opinion by Justice Rodriguez

      Appellant Adrian Pina Contreras was convicted of murder and sentenced to

seventy-seven years in prison. Contreras appeals the judgment, asserting six issues which

we renumber and reorganize as the following four issues: (1) the State improperly withheld

impeachment evidence and the trial court erred in refusing to grant appellant's motion for
new trial on that basis; (2) the trial court erred in admitting evidence of appellant's gang

affiliation and a photograph of the victim; (3) the State made improper jury argument; and

(4) counsel's assistance was ineffective. We affirm.

                                                I. BACKGROUND

        Testimony at trial revealed that on March 20, 2004, the victim, David Garcia, was

at the beach on South Padre Island. During the early-morning hours, Garcia was stabbed

in the neck by a man wearing a Hawaiian shirt. Elizabeth Flores Zorola,1 a medical

assistant who was at the beach when the stabbing occurred, performed CPR on Garcia

until the EMS arrived. Garcia was taken to the hospital by ambulance. According to the

autopsy report, Garcia was pronounced dead on arrival at the hospital. Norma Jean

Farley, a forensic pathologist, testified that the cause of death was a stab wound to the

neck.

        In January 2008, appellant was indicted for the murder of Garcia. The jury trial

began on November 18, 2008. Two eyewitnesses, Zorola and Adriana Flores, Zorola's

sister, testified at trial. Zorola testified that the man who stabbed Garcia was wearing a

blue Hawaiian shirt with white flowers on it. Zorola described the man as bald and

big—heavy set. He wore his shirt open, with a white muscle shirt under it. Before the

stabbing, Zorola saw the man's face when he walked in front of her and she noticed his

shirt. Flores also described the man who struck Garcia as "big, bald," and "wearing a

Hawaiian shirt with a muscle shirt under [it] with beige shorts." Flores testified that she saw

the man walking on the beach. In addition, Moises Ruiz testified that he and Garcia were



        1
            Elizabeth Flores Zorola is also referred to in the record as Elizabeth Lilliana Flores.

                                                         2
"hanging out" during Spring Break and that he saw someone "punch" Garcia. Ruiz testified

that he did not see appellant at the beach that night, but he described the person who

struck Garcia as "chubby" with "shaved hair." Ruiz also testified that the man was wearing

a shirt with Hawaiian designs.2

        Furthermore, Zorola and Flores testified that about a week after the incident they

were asked to look at photo lineups and had identified appellant as the person who

stabbed Garcia. Flores, who was fourteen at the time of the incident, testified that she

remembered the man's face and was not mistaken in her identification of appellant. At

trial, both women identified appellant as the person each had identified earlier from the

photo lineups.

        Lieutenant Domingo Diaz, Jr., the police officer who was with Zorola and Flores

when they identified appellant, also testified regarding the photo lineup identifications.3 He

stated that each lineup included a picture of appellant. Lieutenant Diaz identified appellant

as the same person the witnesses had identified, explaining that appellant had lost a lot

of weight.

        Appellant's defense was that the State's prosecution was based on a mistaken

identity. Appellant denied being at South Padre Island on the morning in question and

called other witnesses who testified likewise. The jury rejected this defense, found

appellant guilty of murder, and assessed a sentence of seventy-seven years.


        2
         The three witnesses testified that the person who struck Garcia was wearing a Hawaiian shirt. The
description of the pattern on the shirt differed som ewhat. Appellant testified that he did not own a Hawaiian
shirt.

        3
          W e note Zorola testified that she was in her apartm ent at the tim e she looked at the photo lineups
but that Lieutenant Diaz testified that he showed Zorola the photo lineups in the parking area of her residence.
Otherwise, the testim ony regarding the identifications m ade from the photo lineups was consistent.

                                                       3
         Appellant timely filed a motion for new trial asserting that he was entitled to a new

trial because the State had not provided him with information regarding criminal records

of a witness and a plea agreement offered to the same witness in another case for

testifying in appellant's case; appellant asserts this information could have been used for

impeachment purposes. After considering the evidence and argument offered at the

hearing, the trial court denied the motion for new trial. This appeal ensued.

                                             II. BRADY VIOLATION

         In his first issue, appellant complains that his conviction should be set aside

because the State improperly withheld impeachment evidence, violating Brady v. Maryland.

See 373 U.S. 83, 87 (1963). Specifically, appellant contends that, after trial, his counsel

discovered that Zorola had received favorable treatment from the State and, subject to her

testimony, was to have a pending aggravated assault felony charge reduced to a Class A

misdeamenor.           Appellant claims that this information could have been used for

impeachment purposes but was not provided to his trial counsel by the State.4 He further

argues that the evidence offered at the hearing on his motion for new trial showed that

Zorola was provided a deal by the District Attorney's office and that the evidence, had it

been disclosed by the State, would have been material to his defense.



         4
           Appellant also claim s that trial counsel requested but did not receive any report from NCIC/TCIC
(national and statewide crim inal inform ation data bases) and other exculpatory evidence from the State.
However, appellant does not develop this contention on appeal; he provides no further explanatory argum ent
addressing the inform ation contained in the NCIC/TCIC report or other exculpatory evidence about which he
com plains. Although appellant provides general law and one citation to the record, he m erely states in a
conclusory fashion that this inform ation, which could have been used for im peachm ent purposes, was not
provided by the State. In sum , appellant provides no m eaningful analysis to support this claim that the State
im properly withheld this evidence which was allegedly im peachm ent or exculpatory evidence. Thus, this
briefing is inadequate. See T EX . R. A PP . P. 38.1(i) (requiring an appellant's brief to contain a clear and concise
argum ent for the contentions m ade, with appropriate citations to authorities and to the record).

                                                          4
A. Applicable Law and Standard of Review

       In Brady, the United States Supreme Court concluded that the suppression by the

prosecution of evidence favorable to a defendant violates due process if the evidence is

material either to guilt or punishment, without regard to the good or bad faith of the

prosecution. See Brady, 373 U.S. at 87; Harm v. State, 183 S.W.3d 403, 405 (Tex. Crim.

App. 2006) (en banc); Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000). Under

Brady, a prosecutor has an affirmative duty to turn over material, exculpatory evidence.

373 U.S. at 87. Exculpatory evidence includes impeachment evidence. Wyatt, 23 S.W.3d

at 27 (citing United States v. Bagley, 473 U.S. 667, 676 (1985)).

       To show reversible error under Brady, a defendant must prove that: (1) the State

failed to disclose evidence, regardless of the prosecution's good or bad faith; (2) the

withheld evidence is favorable to him; and (3) the evidence is material, that is, there is a

reasonable probability that had the evidence been disclosed, the outcome of the trial would

have been different. Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002); see

Harm, 183 S.W.3d at 405; see also Lowry v. State, No. 13-03-00081-CR, 2008 Tex. App.

LEXIS 935, at *30 (Tex. App.–Corpus Christi Feb. 7, 2008, pet. ref'd) (mem. op., not

designated for publication). "The mere possibility that an item of undisclosed information

might have helped the defense, or might have affected the outcome of the trial, does not

establish 'materiality' in the constitutional sense." Hampton, 86 S.W.3d at 612 (emphasis

added) (quoting United States v. Agurs, 427 U.S. 97, 109-10 (1976)). Rather, the inquiry

is whether the failure of the State to disclose the evidence undermines the confidence in

the jury's verdict. See Lempar v. State, 191 S.W.3d 230, 241 (Tex. App.–San Antonio



                                             5
2005, pet ref'd) (mem. op., designated for publication) (citing Ex parte Richardson, 70

S.W.3d 865, 870 n.22 (Tex. Crim. App. 2002)).

       Because the Brady violations were raised in a motion for new trial, we review the

trial court's determination under an abuse of discretion standard. See Webb v. State, 232

S.W.3d 109, 112 (Tex. Crim. App. 2007). "We view the evidence in the light most

favorable to the trial court's ruling and uphold the trial court's ruling if it was within the zone

of reasonable disagreement. Id. (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim.

App. 2004)).

B. Discussion

       At the hearing on the motion for new trial, the attorneys for the State argued to the

trial court that they had no knowledge of any offer to secure Zorola's testimony in exchange

for a reduction of charges on an aggravated assault case pending against her. By affidavit

filed in support of the State's response to appellant's motion for new trial, the prosecutor

stated that the State "has not promised [Zorola] anything regarding the charges that are

pending against her at this time for her testimony" and that [the prosecutors] "are not

involved in the plea bargaining."

       Appellant supported his position through the testimony of attorney Angela Nix, a

practicing attorney who had been appointed in June 2006 to represent Zorola in a second-

degree felony, aggravated-assault case. Nix testified that she was at the courthouse for

the re-arraignment of her client Zorola after being advised in November 2008, "that one of

[her] long-gone absconder clients [Zorola] had surfaced again," and she "needed to come

. . . to the courthouse to arraign [Zorola] and speak to the [S]tate about her." While waiting



                                                6
for her client, Mike Kiesel from the District Attorney's Office informed Nix there was an offer

they wanted to extend to Zorola regarding her aggravated assault case.5 Although Nix

testified that Zorola seemed to be aware of the offer and had accepted it, she also testified

that Zorola never told her that she had an agreement to testify and that, in exchange for

that testimony, she was going to get a deal.

         On cross-examination it was determined that Nix's conversation with Kiesel occurred

while Zorola was testifying on behalf of the State in appellant's case. According to Nix's

testimony, during that conversation Kiesel told her that Zorola's testifying was the reason

for them making this more than generous offer to reduce Zorola's charge to a Class A

assault.6 Finally, in response to the trial court's questions, Nix indicated that she spoke

with Kiesel before she went to re-arraign her client and that while going to the re-

arraignment, Nix and Kiesel observed Zorola being assaulted by "some folks interested in

the trial." Although Nix intended on "doing the plea with [Zorola] that day in county court

. . . after she got assaulted, she was rather shook [sic] and she left the courthouse with an

escort provided by the DA's office." Nix acknowledged that, except for a November 20 re-

arraignment form filed with Judge Leal, nothing had been filed with the county court. Nix

also testified that she had not received any paperwork indicating a plea in her client's case

and had not been notified that it had been filed.




         5
             It is undisputed that Mike Kiesel is no longer with the District Attorney's Office in Cam eron County,
Texas.

         6
           Nix testified that, as part of the agreem ent, the aggravated assault would be dism issed in the district
court where Zorola would not have been eligible for probation because of a previous conviction. Nix also
testified that she had noted on her calendar that, as discussed with Kiesel, she was, and still is, expecting that
Zorola will "plead cold to the m isdem eanor . . . on an assault Class A, and transfer the probation to Nebraska."

                                                          7
       Assuming without determining that the State withheld evidence and that it was

favorable to appellant, thus, satisfying Brady's first two elements, we conclude,

nonetheless, that the trial court did not abuse its discretion in denying appellant's motion

for new trial because appellant cannot show that the complained-of information is material.

See Hampton, 86 S.W.3d at 612; see Harm, 183 S.W.3d at 405. The jury heard Zorola's

testimony on November 19, 2008. The jury had already heard Flores identify appellant as

the person who stabbed Garcia and who was wearing a Hawaiian shirt. The jury had also

heard Ruiz, who was "hanging out" with Garcia that morning, testify that he saw a "chubby

guy" "swing at David," and that the man had "shaved hair" and was wearing a shirt with

Hawaiian designs. The jury had heard Lieutenant Diaz testify that approximately one week

after the incident Zorola identified appellant from a photo lineup. That identification was

made more than four years before Zorola was asked to testify and more than four years

before she entered into an agreement, if any, with the State to testify in appellant's case

in return for favorable treatment in her 2006 aggravated assault case.

       Appellant asserts that he wanted to use this information for impeachment purposes.

In his motion for new trial he asserted that the information would have been helpful in his

defense because it would go to Zorola's credibility and whether she was testifying to the

facts or whether she was testifying to keep herself from going to prison. However, it is

clear to this Court that the State's failure to disclose any agreement it may have had with

Zorola would not have undermined the confidence in the jury's verdict. See Lempar, 191

S.W.3d at 241 (citing Ex parte Richardson, 70 S.W.3d at 870 n.22). At best, it might

suggest that Zorola had an interest in testifying at trial. There is no evidence that

knowledge of an agreement would have offered appellant the opportunity to impeach

                                             8
Zorola's testimony. See Harm, 183 S.W.3d at 408 (explaining that "impeachment evidence

is that which disputes or contradicts other evidence"). Zorola's testimony at trial was

consistent with her identification of appellant four years earlier and also with the testimony

of Flores, Ruiz, and Lieutenant Diaz. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim.

App. 1986) (noting that the jury, as the trier of fact, is the exclusive judge of the credibility

of witnesses and the weight to be afforded their testimony). Therefore, while it is

conceivable that this information would possibly have helped the defense, the mere

possibility does not establish "materiality" in the constitutional sense. See Hampton, 86

S.W.3d at 612. Appellant has failed to demonstrate that the information would probably

lead to a different outcome. See id.; see also Harm, 183 S.W.3d at 405; Wyatt, 23 S.W.3d

at 27. As a result, any evidence regarding an agreement Zorola had with the State would

not be material. See Wyatt, 23 S.W.3d at 27. Thus, appellant has not satisfied the third

element of Brady. See Hampton, 86 S.W.3d at 612; Harm, 183 S.W.3d at 405. Based on

this analysis, we further conclude that the trial court did not abuse its discretion in denying

appellant's motion for new trial. See Webb, 232 S.W.3d at 112. Accordingly, we overrule

appellant's first issue.

                                 III. ADMISSION OF EVIDENCE

       In his second issue, appellant complains of the admission of certain evidence,

including evidence of appellant's gang affiliation and an autopsy photograph.

A. Gang Affiliation Testimony

       Appellant first asserts that the trial court erred in allowing the State to present

evidence of his gang affiliation because the evidence was inflammatory and irrelevant and



                                               9
used only "to show that he was a bad and dangerous person who acted in conformity with

his bad character." See TEX . R. EVID . 404(b); Moreno v. State, 721 S.W.2d 295, 301 (Tex.

Crim. App. 1986) (en banc). Appellant further claims that, through this testimony, the

danger of unfair prejudice substantially outweighed the probative value of the evidence.

See TEX . R. EVID . 403. The State responds that appellant has failed to preserve error on

this issue. We agree.

       Although appellant contends that the State improperly elicited testimony from

appellant and his alibi witnesses concerning appellant's alleged gang membership,

appellant does not assert that defense counsel raised such an objection to the complained-

of testimony, nor have we found this to be the case. Thus, appellant presents nothing for

review. See TEX . R. APP. P. 33.1(a) (providing that to preserve error for appellate review,

the complainant must make a timely, specific objection that the trial court refuses); Young

v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004) (en banc); see also TEX . R. EVID . 103.

B. Autopsy Photograph

       Appellant also complains of the admission of State's exhibit 8, an autopsy

photograph of the victim's head. He contends that the trial court erred in admitting the

photograph because it is prejudicial, of no probative value, and the prejudice outweighs the

need for the photograph. See TEX . R. EVID . 403, 404.

       The admissibility of photographs over a challenge is within the sound discretion of

the trial court. Rojas v. State, 986 S.W.2d 241, 249 (Tex. Crim. App. 1998). However,

when a defendant affirmatively states that he has "no objection" to the admission of the

evidence during trial, he waives the right to complain about the trial court's ruling on

appeal. Holmes v. State, 248 S.W.3d 194, 196 (Tex. Crim. App. 2008). In this case,


                                            10
appellant's counsel affirmatively responded that he had no objection when the State

tendered exhibit 8, the autopsy photograph, and the trial court received the exhibit without

objection. Therefore, appellant has not preserved this complaint.

         Having concluded that appellant failed to preserve error regarding the admission of

gang-affiliation testimony or of the autopsy photograph, we overrule appellant's second

issue.

                                 IV. IMPROPER JURY ARGUMENT

         In his third issue, appellant asserts that the trial court erred in refusing to instruct the

jury to disregard the following prosecutorial jury argument: "Is it a coincidence that Norma

Rendon came here and told you that she received information from Armando Trevino that

only the person there would have known that Bubba Pina was at the beach." We need not

address this contention, however, because appellant objected that the argument was

based on facts not in evidence, and the trial court sustained his objection. See Young, 137

S.W.3d at 69. Appellant then asked for an instruction, and the trial court granted his

request. See id. Therefore, this assertion is misguided.

         Appellant also appears to be complaining of all prosecutorial jury arguments that

suggested appellant's gang affiliation.         However, the court of criminal appeals has

concluded that an objection pursued to an adverse ruling is required to preserve jury

argument error for appellate review. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim.

App. 2007). In this case, when the prosecutor presented gang-related jury arguments,

appellant did not object. Therefore, appellant has not preserved error to the extent he is

now complaining of such arguments. We overrule appellant's third issue.




                                                 11
                               V. INEFFECTIVE ASSISTANCE OF COUNSEL

        By his fourth issue, appellant asserts that his conviction should be set aside

because he received ineffective assistance of counsel at trial. He complains of the

following instances when counsel was allegedly ineffective: (1) when counsel elicited

testimony from appellant regarding his prior criminal history, including an arrest for

aggravated assault with a weapon on a rival gang member; (2) when counsel elicited

testimony from witnesses opening the door to otherwise inadmissable extraneous offense

or "bad acts" evidence; (3) when counsel asked questions of appellant and witnesses

about appellant's gang affiliation; and (4) when he failed to object to testimony or to request

a limiting instruction on gang affiliation testimony or extraneous-offense evidence.7

Appellant asserts that counsel's actions destroyed his credibility and prejudiced his

defense.

        Strickland v. Washington sets forth the standard with which we review claims of

ineffective assistance of counsel. 466 U.S. 668, 688 (1984); see Stafford v. State, 813

S.W.2d 503, 506 (Tex. Crim. App. 1991) (en banc). In order to determine whether

appellant's trial counsel rendered ineffective assistance, we must first determine whether

appellant has shown counsel's representation fell below an objective standard of

reasonableness and, if so, then determine whether there is a reasonable probability that

the result would have been different but for counsel's errors. Strickland, 466 U.S. at 688,



        7
          Appellant also contends that his counsel was ineffective because he failed to (1) adequately protect
his rights by insisting on rulings on discovery requests; (2) object to hearsay; and (3) conduct a sufficient
independent investigation of the facts of the case. He does not, however, support these assertions with clear
and concise argum ents and with appropriate citations to authorities and to the record. T EX . R. A PP . P. 38.1(i);
Rhoades v. State, 934 S.W .2d 113, 119 (Tex. Crim . App. 1996) (en banc) ("It is incum bent upon counsel to
cite specific legal authority and to provide legal argum ent based upon that authority."). Therefore, we
conclude that these additional contentions are inadequately briefed. See Tufele v. State, 130 S.W .3d 267,
271 (Tex. App.–Houston [14th Dist.] 2002, pet. ref'd).

                                                        12
690-94. In assessing a claim of ineffective assistance of counsel, we indulge a strong

presumption that "counsel's conduct fell within a wide range of reasonable representation."

Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). Appellant must overcome

the presumption that, under the circumstances, the challenged action might be considered

sound trial strategy. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); Stafford,

813 S.W.2d at 508-09. Furthermore, the record on direct appeal will rarely contain

sufficient information to evaluate an ineffective assistance claim. Bone v. State, 77 S.W.3d

828, 833 (Tex. Crim. App. 2002).

       In this case, the appellate record contains no evidence regarding the trial strategy

of appellant's counsel. See id. Specifically, the record developed at the hearing on the

motion for new trial contains no evidence supporting appellant's ineffective assistance of

counsel claim. Appellant's trial counsel did not testify regarding his performance at trial.

Therefore, we conclude that the record does not rebut the presumption that trial counsel's

actions and decisions were reasonably professional and were motivated by sound trial

strategy. See Garcia, 57 S.W.3d at 440; Stafford, 813 S.W.2d at 508-09; see also Salinas,

163 S.W.3d at 740. We overrule appellant's fourth and final issue.

                                     VI. CONCLUSION

       We affirm the judgment of the trial court.


                                                        NELDA V. RODRIGUEZ
                                                        Justice

Do not publish.
TEX . R. APP. P. 47.2(b).

Delivered and filed the
10th day of June, 2010.



                                            13
