Opinion issued June 21, 2016




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-15-00167-CR
                           ———————————
                  JOSHUA JACOB PATTERSON, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 240th District Court
                          Fort Bend County, Texas
                    Trial Court Case No. 11-DCR-058778


                                  OPINION

      A jury found Joshua Jacob Patterson guilty of murder and assessed

punishment at 50 years’ confinement and a $1,000 fine. In nine issues, Patterson

contends that his conviction should be reversed because:
      (1)    under the doctrine of in pari materia, he should have been indicted for

             engaging in organized criminal activity rather than murder;

      (2)    the trial court erroneously admitted evidence of an extraneous

             aggravated robbery;

      (3)    he was not given all of the custodial warnings required by Section

             3(a)(2) of Article 38.22 of the Code of Criminal Procedure and his

             interrogation was therefore wrongly admitted into evidence; and

      (4)    his trial counsel was ineffective.

We affirm the trial court’s judgment.

                                     Background

      A grand jury indicted Patterson for the murder of Kristian Sullivan, who died

of multiple gunshot wounds in the front yard of his grandmother’s house. Patterson

filed a pre-trial motion to suppress any statement he had made to law enforcement

officers. In this motion, he asserted several bases for suppression, including that his

statements “were taken without the safeguards required by and in violation of Article

38.22 of the Code of Criminal Procedure.” But Patterson did not secure a ruling on

the motion before or during trial.

      The State’s theory of the case was that Patterson and other members of the

criminal street gang “100 Click” planned and carried out the murder of Sullivan, a

member of the rival gang “F.A.B.,” in retaliation for an earlier gang-related shooting.



                                          2
The defense disputed that Patterson was an active member of 100 Click and claimed

that he did not know that the gang intended to kill Sullivan. The defense’s theory

was that Patterson drove Sterlyn Edwards and Antonnyer Morrison, one or both of

whom shot Sullivan, to and from the murder scene without knowing they planned to

shoot Sullivan. According to defense counsel, Patterson mistakenly believed he was

driving the group to Sullivan’s house to buy marijuana. Counsel told the jury

Patterson was simply “in the wrong place at the wrong time with the wrong people.”

      Multiple law enforcement officers testified for the State, including K. Tullos,

a peace officer with the Missouri City Police Department who was assigned to

investigate gang-related crimes and who investigated Sullivan’s murder. Tullos

testified about 100 Click and F.A.B.1 and about the violent rivalry between these two

gangs. In particular, he stated that a F.A.B. member allegedly shot a member of 100

Click a couple of weeks before Sullivan’s murder. Tullos testified that Sullivan was

a member of F.A.B. and that the men Patterson drove to and from Sullivan’s house—

Edwards and Morrison—were members of 100 Click or an affiliated gang known as

the “Young Ones.”

      Tullos discussed the criteria that the State uses to classify someone as a gang

member. He testified that he classified Patterson as a member of 100 Click based



1
      According to Tullos, F.A.B. stands for Forever About Bread, with “Bread”
      being a reference to money.

                                         3
on social media postings in which Patterson associated with known gang members

and displayed a hand sign associated with the gang. Tullos also relied on interviews

with Edwards and others in identifying Patterson as a member of 100 Click. Tullos

conceded on cross-examination that he had discretion to decide whether Patterson

met the criteria, and that he had not encountered Patterson engaging in any gang-

related activity before Sullivan’s murder.

      After Tullos’s cross-examination, the State argued that by raising lack of

evidence of Patterson’s gang involvement as a defense in this case, the defense had

opened the door to proof of an aggravated robbery that Patterson and Edwards

allegedly committed together two to three months after Sullivan’s murder. The

defense objected that it had not opened the door and that the danger of unfair

prejudice associated with this evidence substantially outweighed its probative value.

The trial court overruled Patterson’s objections to the admission of this extraneous

aggravated robbery. Tullos then testified on re-direct that committing a crime with

a known gang member is a criterion used by law enforcement authorities when

assessing gang membership. He stated that he assisted in the investigation of an

aggravated robbery of a check-cashing business, in which law enforcement officers

identified Edwards as one of the robbers based on fingerprint evidence. Tullos

identified Patterson as the other robber based on still photographs taken from video




                                             4
surveillance footage. The State introduced these photos into evidence without

objection.

      R. Ramirez, a patrol sergeant with the City of Sugar Land Police Department,

also testified for the State. At the time of the murder investigation, Ramirez was a

supervisor of a special crimes unit that was comprised of law enforcement authorities

in Sugar Land, Stafford, and Missouri City. The unit’s purpose was to investigate

gang crimes and street-level narcotics. Ramirez testified about the history of

violence between 100 Click and F.A.B., noting that a person associated with 100

Click had been shot a couple of weeks before Sullivan’s murder.

      Ramirez also testified that he conducted a videotaped interview of Patterson,

which the trial court admitted over a hearsay objection. During the interview,

Patterson initially denied any involvement in Sullivan’s murder, but eventually

admitted that he drove Edwards and Morrison to and from the murder scene. He

claimed in the interview that he did not know that Edwards and Morrison intended

to kill Sullivan. Patterson insisted that he was not an active member of 100 Click

and that he drove Edwards and Morrison to the scene of the crime believing that they

were going to buy marijuana.

      After Patterson’s videotaped interview was played for the jury, Ramirez

resumed his testimony. Ramirez testified that Edwards was the first person to

implicate Patterson and conceded on cross-examination that Edwards told multiple,



                                         5
conflicting versions of the events surrounding Sullivan’s murder. But Ramirez

stated that Edwards ultimately told law enforcement officers that Patterson not only

was the driver but also had been involved in the planning of Sullivan’s murder and

that the motive for the murder was gang-related retaliation.

      The State also called as witnesses two young women who were with Patterson,

Edwards, and Morrison on the evening of Sullivan’s murder. Kandace Hall, who

had a romantic relationship with Patterson, testified that she knew that Edwards,

Morrison, and Patterson were members of 100 Click. Hall stated she and these three

men left the location at which they were hanging out on the night of Sullivan’s

murder to purchase marijuana. Before they left, Patterson put a backpack in which

he kept a gun in the car’s trunk. Patterson drove while Edwards gave him directions.

Once they arrived at their destination, Edwards and Morrison got out of the car and

walked down the street. After a few minutes, Edwards and Morrison came running

back to the car. Hall testified that Patterson backed the car up to meet them. When

Edwards and Morrison got into the car, Hall saw that Edwards had the gun that

Patterson kept in his backpack and Edwards said that he shot “him” without

specifying whom he shot. Patterson did not ask who had been shot; he merely asked

whether Edwards and Morrison had gotten the marijuana. Hall testified that there

was no further conversation about the shooting, and that Patterson drove away from

the scene. Hall also testified that Edwards and Patterson subsequently placed the



                                         6
gun under the hood of the car and that Patterson retrieved it from under the hood

when she later dropped him off at home.

      Hall’s best friend, Samon Williams, also testified. Williams stated that she

and Hall had been hanging out with some members of 100 Click, including

Patterson, the evening of Sullivan’s murder. But when another man named Tracy

arrived, she left with him. Later, Hall, Patterson, Morrison, and Edwards arrived at

Tracy’s house to pick up Williams. Williams testified that the men were talking and

seemed normal, but that Hall was shaking and scared. The five of them left Tracy’s

house, and Williams and Hall dropped Patterson, Morrison, and Edwards off at their

respective homes. When they reached Patterson’s home, Williams testified that he

asked her to pop the hood and then retrieved a gun from under it.

      In her closing argument, defense counsel argued that the jury had “not heard

one single piece of evidence” that linked Patterson with Sullivan’s murder other than

that “he was in the wrong place at the wrong time” with the “wrong people.” She

also argued that Patterson denied being an active gang member, and that no witness

could testify about any supposed gang activity on his part.

      The jury rendered a guilty verdict and assessed punishment at 50 years’

confinement and a $1,000 fine. Patterson filed a motion for new trial, in which he

complained of the admission of evidence relating to the aggravated robbery and his

gang affiliation. The trial court denied the motion.



                                          7
                                     Discussion

A.    Murder and organized crime statutes are not in pari materia

      In his first issue, Patterson contends that the State violated his right to due

process by prosecuting him for murder rather than for engaging in organized

criminal activity. He argues that Section 19.02 of the Penal Code, which defines

murder, and Section 71.02 of the Penal Code, which defines organized crime,

address the same subject matter and conflict. Therefore, he argues that the doctrine

of in pari materia required that he be prosecuted under the more specific organized

crime statute, not under the more general murder statute.

      1.     Applicable law

      The doctrine of in pari materia confers on defendants a due process right to

be prosecuted under a narrower, more specific statute when it irreconcilably conflicts

with a broader statute addressing the same subject. Azeez v. State, 248 S.W.3d 182,

191–92 (Tex. Crim. App. 2008). But the doctrine does not apply in every instance

in which two statutes address the same subject; it does not apply if the two statutes

“have different objects, intend to cover different situations, and are not intended to

be considered together.” Johnson v. State, 882 S.W.2d 39, 41–42 (Tex. App.—

Houston [1st Dist.] 1994, pet. ref’d).

      In deciding whether two statutes address the same subject matter for purposes

of the doctrine, we consider whether they (1) are contained in the same legislative



                                          8
enactment, (2) have the same elements of proof, (3) impose different penalties, and

(4) are written to achieve the same purpose or objective. Bearnth v. State, 361

S.W.3d 135, 141–42 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d); Hollin v.

State, 227 S.W.3d 117, 121 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).

Similarity of purpose is the most significant of these four factors. Bearnth, 361

S.W.3d at 142; Hollin, 227 S.W.3d at 121. If the statutes were not enacted with the

same purpose in mind, they do not address the same subject matter for purposes of

the in pari materia doctrine. Burke v. State, 28 S.W.3d 545, 547 (Tex. Crim. App.

2000). Moreover, even when two statutes address the same subject, they do not

irreconcilably conflict with one another unless “only one of them can apply to a

particular situation.” Lomax v. State, 233 S.W.3d 302, 312 (Tex. Crim. App. 2007).

That two statutes both might apply to the same conduct in some situations does not

mean that they irreconcilably conflict with one another. Id.

      Whether two statutes are in pari materia is a question of law. Garrett v. State,

424 S.W.3d 624, 629 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d). We

therefore review this issue de novo. Id.

      2.     Analysis

      A person commits the offense of murder if he:

      (1) intentionally or knowingly causes the death of an individual;

      (2) intends to cause serious bodily injury and commits an act clearly
          dangerous to human life that causes the death of an individual; or

                                           9
         (3) commits or attempts to commit a felony, other than manslaughter,
             and in the course of and in furtherance of the commission or
             attempt, or in immediate flight from the commission or attempt, he
             commits or attempts to commit an act clearly dangerous to human
             life that causes the death of an individual.

TEX. PENAL CODE § 19.02(b). A person commits the offense of engaging in

organized criminal activity if he commits or conspires to commit any one of a

number of specified offenses, including murder, “with the intent to establish,

maintain, or participate in a combination or in the profits of a combination or as a

member of a criminal street gang.” TEX. PENAL CODE § 71.02(a)(1).

         Sections 19.02(b) and 71.02(a)(1) of the Penal Code do not address the same

subject. First, these are not part of the same legislative enactment. Section 19.02(b)

is part of Title 5 of the Penal Code, which concerns offenses against the person.

Section 71.02(a)(1) is part of Title 11 of the Penal Code, which concerns organized

crime.

         Second, these two offenses have different elements. A person commits an

offense under Section 71.02(a)(1) by committing or conspiring to commit a wide

variety of predicate crimes “with the intent to establish, maintain, or participate in a

combination or in the profits of a combination or as a member of a criminal street

gang.” TEX. PENAL CODE § 71.02(a). Murder is one of the predicate crimes that will

support an organized criminal activity conviction. Id. § 71.02(a)(1). But murder




                                          10
does not require the specific intent required by the organized criminal activity

statute. Compare id. § 19.02, with id. § 71.02(a).

      The two offenses also carry different penalties. Patterson was charged with

intentionally and knowingly committing murder, a first degree felony punishable by

imprisonment “for life or for any term of not more than 99 years or less than 5 years”

and “a fine not to exceed $10,000.” Id. §§ 12.32, 19.02(b)(1), (c). In contrast, a

conviction for engaging in organized criminal activity involving murder is

punishable by imprisonment for “life or for any term of not more than 99 years or

less than 15 years.” Id. § 71.02(b)(3).

      Finally, the offenses were not written to achieve the same purpose or

objective. The murder statute broadly prohibits and punishes the unjustified killing

of a person regardless of purpose or motive. See id. § 19.02. The organized criminal

activity statute, however, is intended to impose harsher punishment when specified

offenses are committed in the service of organized crime. See id. § 71.02(b); see

also McDonald v. State, 692 S.W.2d 169, 172 (Tex. App.—Houston [1st Dist.] 1985,

pet. ref’d) (organized criminal activity statute “is an obvious attempt to discourage

and deter” organized crime by punishing it more severely based on “the legislature’s

recognition that organized criminal activity is more dangerous to the welfare of the

state than unorganized activity”). Having considered the four relevant factors, we




                                          11
conclude that Penal Code Sections 19.02(b) and 71.02(a)(1) are not addressed to the

same subject. Burke, 28 S.W.3d at 547.

      Moreover, Patterson has not identified an irreconcilable conflict between

these statutes and we discern none. Both statutes might apply to the same conduct

in some situations. See TEX. PENAL CODE § 71.02(a)(1) (incorporating murder as

one predicate offense that may constitute engaging in organized criminal activity

when committed with requisite purpose or motive). But the fact that two criminal

statutes might apply to the same situation does not mean that they irreconcilably

conflict with one another. Lomax, 233 S.W.3d at 312.

      In conclusion, we hold that the doctrine of in pari materia does not apply

because Section 19.02(b) and Section 71.02(a)(1) do not address the same subject or

irreconcilably conflict with one another. Because the doctrine does not apply, the

State had discretion to prosecute Patterson under Section 19.02(b). See Burke, 28

S.W.3d at 547; Hollin, 227 S.W.3d at 122.

      We overrule Patterson’s first issue.

B.    No abuse of discretion or prosecutorial misconduct in the admission of
      extraneous offense evidence

      In his second issue, Patterson contends that the State misled the trial court by

arguing that the defense opened the door to evidence about Patterson’s extraneous

aggravated robbery with Edwards. He also argues that his counsel did not open the

door to this evidence in her opening statement or cross-examination of witnesses.

                                         12
Relatedly, in his eighth issue, Patterson contends the trial court erred by failing to

balance the probative value of the aggravated robbery against its potential for unfair

prejudice before admitting it during the guilt-innocence phase of trial.

      1.     Applicable law

      To preserve error, a party must object with specificity in the trial court and the

error the party asserts on appeal must conform to the objection made at trial. Clark

v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). The requirement of a proper

objection extends to most errors, including prosecutorial misconduct. Penry v. State,

903 S.W.2d 715, 764 (Tex. Crim. App. 1995); Hajjar v. State, 176 S.W.3d 554, 566

(Tex. App.—Houston [1st Dist.] 2004, pet. ref’d). Therefore, a party may not assert

prosecutorial misconduct for the first time on appeal. Hajjar, 176 S.W.3d at 566.

      In general, evidence of other crimes is not admissible to prove bad character

or conduct in conformity, but may be relevant and admissible for other purposes like

proving motive, intent, or absence of mistake, during the guilt-innocence phase of

trial. TEX. R. EVID. 404(b); Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App.

2011). Thus, defense counsel may open the door to proof of other crimes by putting

motive, intent, or mistake at issue in an opening statement or during the cross-

examination of the State’s witnesses. Powell v. State, 63 S.W.3d 435, 438–40 (Tex.

Crim. App. 2001); Cantu v. State, 395 S.W.3d 202, 213 (Tex. App.—Houston [1st

Dist.] 2012, pet. ref’d); Blackwell v. State, 193 S.W.3d 1, 11–13 (Tex. App.—



                                          13
Houston [1st Dist.] 2006, pet. ref’d).         Like any other issue concerning the

admissibility of evidence, whether a defendant has opened the door to evidence of

other crimes is a matter within the trial court’s discretion. See Bowley v. State, 310

S.W.3d 431, 435 (Tex. Crim. App. 2010); Green v. State, 934 S.W.2d 92, 101–02

(Tex. Crim. App. 1996). So long as the trial court’s ruling is within the zone of

reasonable disagreement, there is no abuse of discretion. Devoe, 354 S.W.3d at 469.

The court’s decision to admit proof of other crimes is generally within this zone if

the evidence “is relevant to a material, non-propensity issue.” Id.

      If the defendant objects to the admission of extraneous offense evidence on

the basis that its potential for unfair prejudice substantially outweighs its probative

value, then the trial court must weigh the relevance of the evidence against its

prejudicial impact. TEX. R. EVID. 403; Johnston v. State, 145 S.W.3d 215, 219–20

(Tex. Crim. App. 2004). But it “need not conduct a formal hearing or even announce

on the record that it has mentally conducted this balancing test.” Cruz v. State, 122

S.W.3d 309, 313 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Rule 403 favors

admissibility of relevant evidence and carries with it a presumption that probative

evidence is more probative than prejudicial. Hajjar, 176 S.W.3d at 562. Factors we

consider include: (1) how compellingly the evidence of the other crime makes a fact

of consequence more or less probable; (2) the evidence’s potential to affect the jury

in an irrational and incurable way; (3) the degree of delay and distraction caused by



                                          14
the presentation of this extraneous evidence; and (4) the proponent’s need for the

particular evidence in light of the other admissible proof. Santellan v. State, 939

S.W.2d 155, 169 (Tex. Crim. App. 1997); Hajjar, 176 S.W.3d at 561.

      2.     Analysis

      At trial, defense counsel argued that Patterson had not opened the door to

evidence of the extraneous aggravated robbery and further objected that any

probative value it might possess was substantially outweighed by the danger of

unfair prejudice. Defense counsel did not assert that the State misled the court or

otherwise engaged in prosecutorial misconduct. Thus, Patterson has not preserved

any alleged prosecutorial misconduct issue for appellate review. See Penry, 903

S.W.2d at 764; Hajjar, 176 S.W.3d at 566.

      To the extent that Patterson argues that defensive theories advocated in an

opening statement or advanced through cross-examination cannot open the door to

proof of other crimes as a matter of law, the decisions of the Court of Criminal

Appeals and this court are to the contrary. Powell, 63 S.W.3d at 438–40; Cantu, 395

S.W.3d at 213; Blackwell, 193 S.W.3d at 11–13. Instead, the salient question is

whether the district court abused its discretion in deciding that Patterson’s defensive

theory made evidence of his participation in a gang-related robbery relevant.

      The principal disputes at trial concerned Patterson’s alleged membership in

100 Click and his role in the shooting of Sullivan. The defense maintained that



                                          15
Patterson was not an active member of the gang and had no idea his companions,

who were gang members, intended to harm Sullivan. In her opening statement,

defense counsel acknowledged that Patterson drove the car that transported the

shooter or shooters to and from the murder scene, but argued that Patterson did so

believing they were merely going there to buy marijuana.           Defense counsel

advocated that the evidence would show that Patterson simply was in the wrong

place at the wrong time with the wrong people. Defense counsel also pursued this

defensive theory during her cross-examination of Tullos by calling into question the

alleged proof that Patterson was a member of 100 Click and establishing that

Patterson played no known role in any prior gang-related violence. In her closing,

defense counsel once again argued that Patterson simply was in the “wrong place, at

the wrong time, with the wrong people,” that he was not an active gang member, and

that there was not “one single piece of evidence” that linked him to Sullivan’s

murder. Consequently, Patterson’s alleged participation in an extraneous aggravated

robbery with a member of 100 Click was relevant, as it made less probable the

defense’s theory that Patterson unwittingly transported gang members to the scene

of the murder. Proof of the extraneous robbery also rebutted the defense’s claim that

Patterson had not been involved in violent gang-related crime.         We therefore

conclude that the defense opened the door to proof concerning the aggravated

robbery. See Blackwell, 193 S.W.3d at 11–13.



                                         16
      By overruling Patterson’s Rule 403 objection, the trial court implicitly

concluded that the danger of unfair prejudice did not substantially outweigh the

probative value of the aggravated robbery. See Cruz, 122 S.W.3d at 313. Analysis

of the four factors confirms the trial court’s ruling was not an abuse of discretion.

      First, evidence of Patterson’s participation in an extraneous robbery with a

known gang member was some proof that Patterson was a member of 100 Click and

involved in its criminal activities, and this in turn made it more probable that he had

a motive to participate in Sullivan’s murder. See Smith v. State, 355 S.W.3d 138,

154 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (gang membership admissible

to show motive and intent or to refute defensive theories).

      Second, the proof regarding the extraneous robbery was not likely to affect

the jury in an irrational way. It was not gruesome or emotionally charged. See

McGregor v. State, 394 S.W.3d 90, 120–21 (Tex. App.—Houston [1st Dist.] 2012,

pet. ref’d) (second factor entails consideration of “the ‘emotional weight’ of the

extraneous offense evidence and whether that evidence was ‘graphic’”).

      Third, the evidence did not cause substantial delay or distraction. Rather, the

evidence consisted of still photographs from surveillance footage at the location of

the robbery and Tullos’s brief testimony about the robbery.

      Fourth, given the defense’s theory that Patterson was not an active member of

100 Click, the prosecution had significant need for contrary proof to rebut the



                                          17
defense’s theory that Patterson innocently found himself in the wrong place in the

company of the wrong people at the time of Sullivan’s murder. We therefore

conclude that the trial court did not abuse its discretion by implicitly deciding that

the robbery’s probative value was not substantially outweighed by the danger of

unfair prejudice. See Santellan, 939 S.W.2d at 169; Hajjar, 176 S.W.3d at 561.

      We overrule Patterson’s second and eighth issues.

C.    No error preserved regarding construction of Article 38.22

      In his ninth issue, Patterson contends that the trial court erred by failing to

strictly construe the statutory requirement that law enforcement officers warn the

subject of a custodial interrogation that he may terminate the interview at any time.

      1.     Applicable law

      Law enforcement officers are required to provide several warnings to anyone

in custody whom they interrogate, including an admonition that the person may

terminate the interview at any time. TEX. CODE CRIM. PROC. art. 38.22, §§ 2(a)(5),

3(a)(2). Any resulting statement is not admissible unless law enforcement officers

provide this warning or its “fully effective equivalent.” Id. § 3(e)(2); see also Nonn

v. State, 41 S.W.3d 677, 679 (Tex. Crim. App. 2001) (substantial compliance with

Article 38.22’s warnings requirements necessary).

      In order to preserve a complaint regarding Article 38.22’s requirements for

appellate review, a defendant must raise the issue with specificity in the trial court.



                                          18
Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009). A general assertion

that law enforcement officers took a videotaped statement “without the safeguards

required by and in violation of Article 38.22 of the Code of Criminal Procedure” is

not sufficient to preserve error, as Article 38.22 contains a number of discrete

subsections that might be applicable to any given videotaped statement. Id.; accord

Leza v. State, 351 S.W.3d 344, 353 & n.28 (Tex. Crim. App. 2011).

       2.    Analysis

       Patterson filed a motion to suppress any statements made to law enforcement

officers. He asserted multiple bases for suppression, including that his statements

“were taken without the safeguards required by and in violation of Article 38.22 of

the Code of Criminal Procedure.” But Patterson did not specify any particular

violation of Article 38.22, and defense counsel informed the trial court that she was

“going to pass on that motion” without seeking a ruling. Because Patterson raised

Article 38.22 without specifying any particular violation of the statute and declined

to present his suppression motion to the trial court, the trial court never had an

opportunity to construe or apply the statute. Patterson therefore has not preserved

this issue for review. Leza, 351 S.W.3d at 353 & n.28; Resendez, 306 S.W.3d at

313.

       We overrule Patterson’s ninth issue.




                                         19
D.    The record does not show ineffective assistance of counsel

      In his third, fourth, fifth, sixth, and seventh issues, Patterson contends that his

trial counsel provided ineffective assistance by failing to:

      ●    move for a mistrial after the trial court overruled Patterson’s objections to

           the admissibility of the extraneous aggravated robbery;

      ●    obtain a ruling on his written motion to suppress by requesting that the

           trial court determine whether Patterson was in custody when law

           enforcement officers took his videotaped statement;

      ●    object to the admissibility of Patterson’s videotaped statement on the basis

           that it was taken in violation of his statutory right to be warned that he

           could end the interview at any time;

      ●    object to the admissibility of Patterson’s videotaped statement on the basis

           that he did not waive his statutory right to terminate the interview at any

           time; and

      ●    object to the admission of Patterson’s videotaped statement on any basis

           other than hearsay.

      1.     Applicable law

      To prevail on his claim of ineffective assistance, Patterson must prove that his

trial counsel’s performance fell below an objective standard of reasonableness and

that this deficiency prejudiced his defense. Lopez v. State, 343 S.W.3d 137, 142



                                          20
(Tex. Crim. App. 2011) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052 (1984)). Patterson bears the burden of proof on both issues, and failure to make

either showing by a preponderance of the evidence will defeat his ineffectiveness

claims. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). His

counsel’s effectiveness must be evaluated based on the totality of the representation

rather than isolated acts or omissions. Scheanette v. State, 144 S.W.3d 503, 509

(Tex. Crim. App. 2004). But trial counsel’s failure to object to admissible evidence

or request a mistrial on the basis of admissible evidence is not deficient performance

as a matter of law. Ex parte Jimenez, 364 S.W.3d 866, 887 (Tex. Crim. App. 2012).

      Unless the record shows that trial counsel’s acts were not the product of

strategic decision-making, we presume that her performance was adequate so long

as the challenged conduct is not so outrageous that no competent attorney would

have engaged in it. State v. Morales, 253 S.W.3d 686, 696–97 (Tex. Crim. App.

2008). Patterson, therefore, must show that no plausible reason exists for the

particular acts or omissions about which he complains. Bone v. State, 77 S.W.3d

828, 836 (Tex. Crim. App. 2002). His ineffective assistance claims cannot rest on

speculation; they must be firmly founded in the record. Id. at 835. If we can only

speculate as to why trial counsel behaved as she did, the presumption of adequate

performance remains unrebutted.       Scheanette, 144 S.W.3d at 510.       Thus, we

“ordinarily need to hear from counsel whether there was a legitimate trial strategy



                                         21
for a certain act or omission.” Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim.

App. 2005).

      2.      Analysis

              a.    Counsel was not deficient by failing to move for mistrial

      Patterson argues that his trial counsel should have moved for a mistrial after

the trial court admitted evidence of his extraneous aggravated robbery over his

objection. But we have held that the trial court did not abuse its discretion by

admitting this evidence. Thus, counsel was not deficient for failing to seek a mistrial

based on its admission. See Ex parte Jimenez, 364 S.W.3d at 887 (failure to move

for mistrial based on admission of admissible evidence is not ineffective assistance).

      We overrule Patterson’s third issue.

              b.    Record is insufficient to assess other ineffective assistance
                    claims

      Patterson argues that his trial counsel should have objected or taken other

measures to secure exclusion of his videotaped statement. But Patterson did not

raise this issue in his motion for new trial, and therefore the record contains no

evidence concerning his trial counsel’s decision-making regarding the statement.

Given that Patterson’s videotaped statement is consistent with his trial defense—that

he drove the shooter or shooters to the murder scene but did not know that murder

was the purpose of the trip—we cannot say that trial counsel’s failure to seek its

exclusion on the bases identified by Patterson was so outrageous that no competent

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attorney would have done so. Because we can only speculate in this regard,

Patterson has not rebutted the presumption that his trial counsel’s performance was

adequate. Scheanette, 144 S.W.3d at 510.

        We overrule Patterson’s fourth, fifth, sixth, and seventh issues.

                                      Conclusion

        We affirm the trial court’s judgment. All pending motions are dismissed as

moot.




                                                Rebeca Huddle
                                                Justice

Panel consists of Justices Keyes, Brown, and Huddle.

Publish. TEX. R. APP. P. 47.2(b).




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