                            NUMBER 13-11-00529-CR

                            COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

ARTURO RODRIGUEZ,                                                          Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 357th District Court
                        of Cameron County, Texas.


                         MEMORANDUM OPINION
               Before Justices Rodriguez, Garza and Perkes
                 Memorandum Opinion by Justice Garza

      A jury convicted appellant, Arturo Rodriguez, of murder and aggravated assault.

See TEX. PENAL CODE ANN. §§ 19.02 (b)(1), 22.02 (West 2011). Trial testimony showed

that appellant stabbed Alfredo Bustinza and Jose Rodriguez in a bar fight. Bustinza

died from his injuries; Rodriguez survived and testified at trial. Following a punishment

hearing before a visiting judge, the trial court assessed punishment at life imprisonment

and a $10,000 fine. By six issues, appellant contends: (1) the trial court erred in
denying his request for a continuance at the punishment phase of trial; (2) he was

denied effective assistance of counsel; (3) the trial court erred in admitting autopsy

photographs and the pathologist’s’ video deposition testimony; (4) the prosecutor

engaged in improper closing argument; (5) the trial court erred in denying his motion for

new trial; and (6) the trial court erred in admitting evidence of appellant’s gang affiliation

at the punishment phase of trial. We affirm.

                                 I. DENIAL OF CONTINUANCE

       By his first issue, appellant contends the trial court erred in denying his request

for a continuance at the punishment phase of trial. Appellant argues that his “due

process rights were violated” because the presiding judge at the punishment hearing

was not as familiar with the evidence in the case as the judge that presided over the jury

trial. The State responds that appellant failed to preserve any issue for review because

he failed to file a written motion for continuance. We agree with the State.

       “[I]f a party makes an unsworn oral motion for a continuance and the trial judge

denies it, the party forfeits the right to complain about the judge's ruling on appeal.”

Anderson v. State, 301 S.W.3d 276, 279 (Tex. Crim. App. 2009). At the beginning of

the punishment phase, appellant’s counsel expressed his preference to have the trial

judge who presided over the guilt/innocence phase preside over the punishment phase;

counsel requested a “resetting” of the punishment phase so that the judge who presided

over the guilt/innocence phase could hear the punishment phase, but no written motion

for continuance appears in the appellate record. The trial court declined to reset the

punishment phase, and the punishment hearing proceeded. Appellant has failed to

preserve this issue for review. See id. We overrule appellant’s first issue.




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                        II. INEFFECTIVE ASSISTANCE OF COUNSEL

      By his second issue, appellant contends he was denied effective assistance of

counsel.     Specifically, appellant contends his trial counsel rendered ineffective

assistance by:    “(1) failing to adequately protect [a]ppellant’s rights by insisting on

discovery requests; (2) failing to object to the introduction of evidence in violation of

[a]ppellant’s Fourth Amendment rights; (3) failing to object to hearsay testimonial

statements by the pathologist; and (4) by failing to object to hearsay improper

statements.”

   A. Standard of Review and Applicable Law

      “To obtain a reversal of a conviction under the Strickland test, a defendant must

show that:       (1) counsel’s performance fell below an objective standard of

reasonableness and (2) counsel’s deficient performance prejudiced the defense,

resulting in an unreliable or fundamentally unfair outcome of the proceeding.” Davis v.

State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009) (citing Strickland v. Washington,

466 U.S. 668, 687 (1984)). “Deficient performance means that ‘counsel made errors so

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by

the Sixth Amendment.’” Ex parte Napper, 322 S.W.3d 202, 246 (Tex. Crim. App. 2010)

(quoting Strickland, 466 U.S. at 687).       “To establish deficient performance, ‘the

defendant must show that counsel’s representation fell below an objective standard of

reasonableness.’” Id. (quoting Strickland, 466 U.S. at 688). “The prejudice prong of

Strickland requires showing ‘a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different.’” Id. at

248 (quoting Strickland, 466 U.S. at 694). “‘A reasonable probability is a probability

sufficient to undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at

694). “[E]ach case must be judged on its own unique facts.” Davis, 278 S.W.3d at 353.
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       The burden is on appellant to prove ineffective assistance of counsel by a

preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.

App. 1999). Appellant must overcome the strong presumption that counsel's conduct

fell within the wide range of reasonable professional assistance and that his actions

could be considered sound trial strategy. See Strickland, 466 U.S. at 689; Jaynes v.

State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.). A reviewing

court will not second-guess legitimate tactical decisions made by trial counsel. State v.

Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) ("[U]nless there is a record

sufficient to demonstrate that counsel’s conduct was not the product of a strategic or

tactical decision, a reviewing court should presume that trial counsel's performance was

constitutionally adequate . . . .”). Counsel’s effectiveness is judged by the totality of the

representation, not by isolated acts or omissions. Thompson, 9 S.W.3d at 813; Jaynes,

216 S.W.3d at 851. An allegation of ineffectiveness must be firmly founded in the

record, and the record must affirmatively demonstrate the alleged ineffectiveness. Bone

v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 814 n.6.

   B. Discussion

       We first note that appellant has not provided any references to the reporter’s

record directing us to instances of counsel’s alleged ineffectiveness. As to appellant’s

first two allegations of ineffectiveness—that counsel failed to protect his rights by

insisting on discovery requests and failing to object to certain evidence in violation of his

Fourth Amendment rights—appellant provides no further explanation or description. We

are unable to ascertain the basis of these allegations either from appellant’s briefing or

from our review of the record. Therefore, these alleged instances of ineffectiveness are

inadequately briefed and present nothing for review. See TEX. R. APP. P. 38.1(i); Busby


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v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008). We overrule appellant’s issue

regarding these allegations of ineffectiveness.

      Appellant complains that his counsel failed to object to “hearsay testimonial

statements by the pathologist.”      Specifically, appellant complains that, as to the

“pathology photographs of the deceased,” his trial counsel “failed to qualify their

objection to relevance under 402 and admissible [sic] under 404(b).”           He further

complains that his confrontation rights were violated when “[t]he pathologist testified

from a report that contained findings that were testimonial in nature and trial counsel

never objected to the same.” Finally, he complains that his trial counsel failed to object

“to admission of ‘bad acts’ which consisted of the [a]ppellant being arrested and

returned from Mexico.”

      Here, the record is silent regarding trial counsel’s reasons for not objecting to the

admission of the autopsy photographs, the pathologist’s deposition testimony, or the

evidence regarding appellant’s arrest in Mexico. Therefore, appellant has not overcome

the strong presumption that counsel's conduct fell within the wide range of reasonable

professional assistance and that his actions could be considered sound trial strategy.

See Ortiz v. State, 93 S.W.3d 79, 88–89 Tex. Crim. App. 2002) (“If counsel’s reasons

for his conduct do not appear in the record and there is at least the possibility that the

conduct could have been legitimate trial strategy, we will defer to counsel’s decisions

and deny relief on an ineffective assistance claim on direct appeal”; see also Strickland,

466 U.S. at 689; Jaynes, 216 S.W.3d at 851.

      Moreover, appellant does not address the second prong of Strickland: whether

there is a reasonable probability that but for trial counsel's alleged errors, the result

would have been different. Thompson, 9 S.W.3d at 812; see Strickland, 466 U.S. at

694. Therefore, appellant has not met his burden to prove ineffective assistance of
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counsel by a preponderance of the evidence.         Thompson, 9 S.W.3d at 813.         We

overrule appellant's second issue.

                  III. ADMISSION OF DEPOSITION TESTIMONY AND PHOTOGRAPHS

        By his third issue, appellant contends the trial court erred in admitting the

deposition testimony of the pathologist and the autopsy photographs.             Appellant

contends that admission of the evidence violated his “right to confrontation,” but

provides no argument supporting this contention. Instead, he argues that the trial court

erred in admitting the complained-of evidence because its probative value is

outweighed by the risk of unfair prejudice under rule 403. See TEX. R. EVID. 403.

        The State responds that the issue is not preserved for our review because

appellant did not object at trial to admission of either the autopsy photographs or the

pathologist’s deposition testimony. We agree in part. The record reflects that appellant

did not object at all to the admission of the autopsy photographs. Appellant objected to

admission of the written transcript of the pathologist’s deposition testimony on the

ground that it was “not signed by the doctor” and to the videotape of the testimony on

the ground that it was a “copy.” Thus, appellant’s complaints on appeal do not comport

with his objections at trial, and he has failed to preserve any issue for appellate review.

See TEX. R. APP. P. 33.1(a)(1)(A); Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App.

2009). We overrule appellant’s third issue.

                               IV. IMPROPER JURY ARGUMENT

        By his fourth issue, appellant complains that during closing argument, the

prosecutor “argued facts not in evidence and [that] were not subject to reasonable

deduction from the evidence[,] but said argument was done only to the inflame the

jurors . . . .”


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       “[P]roper jury argument generally falls within one of four general areas:          (1)

summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to

argument of opposing counsel; and (4) plea for law enforcement.” Brown v. State, 270

S.W.3d 564, 570 (Tex. Crim. App. 2008). “[E]rror exists when facts not supported by

the record are interjected in the argument, but such error is not reversible unless, in light

of the record, the argument is extreme or manifestly improper.” Id.

       The preferred procedure for a party to voice its complaint is: “(1) to object when

it is possible, (2) to request an instruction to disregard if the prejudicial event has

occurred, and (3) to move for a mistrial if a party thinks an instruction to disregard was

not sufficient.” Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004). Although

“this sequence is not essential to preserve complaints for appellate review,” “[t]he

essential requirement is a timely, specific request that the trial court refuses.” Id. “A

request for an instruction to disregard is essential to the preservation of error only when

such an instruction could have had the effect desired by the requesting party.” Cruz v.

State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007). “In most instances, an instruction

to disregard the remarks will cure the error.” Wesbrook v. State, 29 S.W.3d 103, 115

(Tex. Crim. App. 2000).

       The court of criminal appeals has held that “a defendant’s failure to object to a

jury argument or a defendant’s failure to pursue to an adverse ruling his objection to a

jury argument forfeits his right to complain about the argument on appeal.” Cockrell v.

State, 933 S.W.2d 73, 89 (Tex. Crim. App.1996). Thus, “[b]efore a defendant will be

permitted to complain on appeal about an erroneous jury argument or that an instruction

to disregard could not have cured an erroneous jury argument, he will have to show he

objected and pursued his objection to an adverse ruling.” Id.


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       Here, in responding to appellant’s self-defense argument, the prosecutor made

made three arguments that appellant objected to as “argu[ing] facts not in evidence”:

(1) he referred to the pathologist’s testimony that the deceased had bruises on his legs

and suggested that the bruises could have resulted from the deceased kicking as he

was stabbed to death; (2) he argued that appellant’s stabbing the deceased “was not

self-defense” because the seat cushion where the deceased was sitting was “pulled

down, probably because the person was pulled up over it”; and (3) in explaining that the

deceased had bruises on the back of his head, the prosecutor said that the injuries may

have resulted from the victim hitting the floor after he was stabbed or from someone

hitting the victim in the back of the head.

       With respect to the first statement—regarding the bruising on the deceased’s

legs—appellant’s trial counsel objected to the prosecutor’s statement as “not a matter of

evidence.”    The trial court sustained the objection.       Appellant’s counsel neither

requested an instruction to disregard or a mistrial. With regard to the prosecutor’s

statement that the seat cushion was pulled down because the victim was pulled up over

it, appellant’s counsel again objected that the statement was “not a matter of evidence.”

The trial court sustained the objection, counsel requested an instruction to disregard,

and the trial court so instructed the jury. Appellant’s counsel did not request a mistrial.

Finally, regarding the prosecutor’s statement suggesting how the victim sustained

injuries to the back of his head, appellant’s counsel again objected that the prosecutor

was “testifying as to matters that are not in evidence.” The trial court sustained the

objection.   Appellant’s counsel neither requested an instruction to disregard the

statement or a mistrial. Because appellant did not pursue any of his objections to an

adverse ruling, he has failed to preserve any of his complaints about the prosecutor’s


                                              8
statements for appellate review. See Young, 137 S.W.3d at 69; Cockrell, 933 S.W.2d at

89. We overrule appellant’s fourth issue.

                                V. MOTION FOR NEW TRIAL

       By his fifth issue, appellant contends the trial court erred in denying his motion for

new trial on the ground that a “new trial should have been granted because of the

Court’s failure to preside over the punishment phase.”

       We review a trial court's denial of a motion for a new trial for abuse of discretion.

See State v. Herndon, 215 S.W.3d 901, 906 (Tex. Crim. App. 2007). “It is not error for a

judge to assess punishment without having presided at the trial, absent an abuse of

discretion.” Webb v. State, 755 S.W.2d 222, 223 (Tex. App.—Houston [1st Dist.] 1988,

pet. ref’d) (citing Hogan v. State, 529 S.W.2d 515, 517 (Tex. Crim. App.1975)). Here,

appellant does not allege an abuse of discretion beyond the fact that a different judge

presided over the punishment phase. The trial court did not abuse its discretion in

assessing appellant’s punishment and therefore did not abuse its discretion in denying

appellant’s motion for new trial. We overrule appellant’s fifth issue.

                             VI. GANG AFFILIATION EVIDENCE

       By his sixth issue, appellant contends the trial court erred in admitting evidence

of his gang affiliation and in considering such evidence at the punishment phase of trial.

Appellant argues that there was “no direct evidence” that he was a gang member or that

the murder was part of a gang ritual. Appellant contends that the State’s evidence did

not establish that he was a gang member.

       We note that the only reference to the record is to testimony offered at the

punishment hearing, specifically the testimony of Lieutenant Dionicio Cortez, a gang

investigator for the Cameron County Sheriff’s Office. Accordingly, we will review only

the admission of Officer Cortez’s testimony.
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       We review evidentiary rulings for abuse of discretion.         Walters v. State, 247

S.W.3d 204, 217 (Tex. Crim. App. 2007). The trial court abuses its discretion only when

its decision lies “outside the zone of reasonable disagreement.” Id. “Evidence of a

defendant’s gang membership may be relevant and admissible at the punishment stage

of a trial to show the character of the accused.” Broadnax v. State, No. AP-76207, 2011

WL 6225399, at *14 (Tex. Crim. App. Dec. 14, 2011) (citing Jones v. State, 944 S.W.2d

642, 652–53 (Tex. Crim. App. 1996); Beasley v. State, 902 S.W.2d 452, 456 (Tex. Crim.

App. 1995)).

       At the punishment hearing, the State admitted a photograph of a Texas

Syndicate tattoo located on appellant’s arm.         Officer Cortez testified that the tattoo

shows that appellant is a member of the Texas Syndicate. Appellant did not object to

Officer Cortez’s testimony or to the admission of the photograph. Officer Cortez further

testified that appellant is identified as a Texas Syndicate gang member in the Texas

Anti-Gang Information Tracking System, a law enforcement database that tracks gang

members. Appellant did not object to this testimony. Accordingly, appellant has not

preserved for review his complaint about the admission of gang-affiliation evidence.

See TEX. R. APP. P. 33.1; Pena, 285 S.W.3d at 464. We overrule appellant’s sixth issue.

                                     VII. CONCLUSION

       We affirm the trial court’s judgment.



                                                    _______________________
                                                    DORI CONTRERAS GARZA
                                                    Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
16th day of May, 2013.


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