NUMBER 13-13-00190-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ALBERT RODRIGUEZ MEDELLIN, Appellant,
v. THE STATE OF TEXAS, Appellee.
On appeal from the 207th District Court of Comal County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Longoria Memorandum Opinion by Justice Rodriguez Appellant Albert Rodriguez Medellin was indicted for murder and aggravated
assault of a member of his household in connection with the death of his girlfriend, Antonia Espinoza. See TEX. PENAL CODE ANN. §§ 19.02(b)(1), 22.02(a)(2), (b)(1) (West, Westlaw *2 through 2013 3d C.S.).1 The indictment alleged that Medellin caused Espinoza's death by striking her with his fists and committed aggravated assault by causing Espinoza serious injury with a deadly weapon, his hands. The indictment also alleged two prior convictions, one for bail jumping and one for burglary of a non-habitation. The jury convicted Medellin of both offenses and sentenced him to ninety-nine years' incarceration for the murder charge and fifty years' incarceration for the aggravated assault charge.
On appeal, Medellin challenges both convictions. By seventeen issues, Medellin argues that: the trial court erred in refusing to grant a change of venue; the evidence was insufficient to support the jury's murder verdict; the jury charge contained an erroneous instruction; certain comments by the prosecutor during the case and closing argument were improper; the trial court erred in admitting expert and lay testimony about the deceased's wounds and cause of death; the trial court erred in admitting, during the punishment phase, certain evidence of Medellin's prior offenses and failing to question the jury about those offenses; defense counsel was ineffective; and cumulative error deprived Medellin of a fair trial. We affirm.2
I. Venue3
By his first issue, Medellin argues that the trial court abused its discretion in overruling his motion for a change of venue. Medellin argues that the publicity of his *3 case in Comal County, a "small county with only one newspaper," was "pervasive and prejudicial." More specifically, Medellin argues that his chance of a fair trial in Comal County was prejudiced by the district attorney talking to the media about what she perceived as Medellin's guilt.
A change in venue may be granted on a criminal defendant's motion if supported by the defendant's affidavit and the affidavits of two other credible residents of the county if, within the county, there is either (1) "so great a prejudice against [the defendant] that he cannot obtain a fair and impartial trial," or (2) "a dangerous combination against [the defendant] instigated by influential persons, by reason of which he cannot expect a fair trial."4 TEX. CODE CRIM. PROC. ANN. art. 31.03(a) (West, Westlaw through 2013 3d C.S.). Medellin's motion sought a change of venue under the first justification—that such a prejudice against him existed in Comal County that he could not obtain a fair and impartial trial.
To justify a change of venue based on public attention sparked by media, a defendant must show that the "publicity was pervasive, prejudicial, and inflammatory." Gonzalez v. State, 222 S.W.3d 446, 449 (Tex. Crim. App. 2007); Salazar v. State, 38 S.W.3d 141, 150 (Tex. Crim. App. 2001). "The mere existence of media attention or publicity is not enough, by itself, to merit a change of venue." Gonzalez, 222 S.W.3d at 449. Even extensive knowledge of the case in the community is not sufficient if there is not a showing of prejudicial or inflammatory coverage. Id. The defendant "bears a *4 heavy burden to prove the existence of such prejudice in the community that the likelihood of obtaining a fair and impartial jury is doubtful." DeBlanc v. State, 799 S.W.2d 701, 704 (Tex. Crim. App. 1990).
We review the denial of a change of venue request for an abuse of discretion. Gonzalez, 222 S.W.3d at 449. We give great deference to the trial court, which is in the best position to resolve issues involving conflicts in testimony and to evaluate the credibility of the witnesses. Id. at 452. If the trial court does not make explicit findings of fact, as is the case here, we will assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App. 2006). As long as the trial court's ruling is within the zone of reasonable disagreement, the trial court does not abuse its discretion in denying the venue motion. See Gonzalez, 222 S.W.3d at 449.
Four witnesses testified at the hearing on Medellin's venue motion. Medellin called two witnesses, one of whom testified that she had already formed her opinion about Medellin's guilt from reading the articles in the local newspaper and the other of whom testified that Medellin would be unable to obtain a fair trial in Comal County because the news articles were not objective. The State called two witnesses, as well. The first witness was a Comal County Commissioner who testified that in all her contacts with constituents, she never heard anything about Medellin. The second witness was a citizen of the Comal County who testified that even though he remembered the initial publicity about the crime, he did not remember the names of the parties or crimes involved.
Medellin introduced and the trial court admitted four local newspaper articles published in the months following the crime. In those articles, the reporter described the beating incident and noted Medellin's criminal history. In each article, the district attorney was interviewed and stated that she believed Medellin was guilty of the offense. In two of the articles, Medellin's defense counsel was interviewed and stated that Medellin was entitled to a fair trial and should not be tried and convicted through media publicity. Finally, Medellin introduced and the trial court admitted documents purporting to show the circulation of the local newspaper; the trial court concluded that the document showed that of the 108,500 residents of Comal County, less than 5,000 subscribed to the newspaper.
The evidence before the trial court on the venue motion was conflicting. Although the newspaper articles arguably contained predispositions about Medellin's guilt— including information about his prior criminal history and the district attorney's statements that she believed Medellin was guilty—there was also an entire article dedicated to defense counsel's rebuttal; in it, defense counsel extensively discussed Medellin's right to a fair trial and admonished the newspaper for publishing articles seemingly presuming Medellin's guilt. Moreover, the testimony by Medellin's witnesses was directly contradicted by the testimony of the State's witnesses. The trial court acted within its discretion in crediting the State's witnesses and disbelieving Medellin's. See id.
In sum, we cannot conclude that Medellin carried his burden to prove that the media coverage of this crime was so pervasive and prejudicial that he could not obtain a fair trial in Comal County. See id.; see also DeBlanc, 799 S.W.2d at 704. There was *6 sufficient evidence from which the trial court could have reasonably come to the opposite conclusion. The mere existence of the media coverage, which is arguably all that Medellin proved, was not enough to support a change of venue. See Gonzalez, 222 S.W.3d at 449. The trial court did not abuse its discretion in denying Medellin's motion. Medellin's first issue is overruled.
II. Sufficiency of the Evidence
By his second issue, Medellin argues that the evidence at trial was insufficient to prove that he caused the death of Espinoza.5 Specifically, Medellin argues that:
There were two doctors and two different and opposed opinions about the cause of death. The [S]tate’s doctor was incompetent to testify on the record, as she had not even read the complete medical reports. The jury was not free to choose to believe the testimony of an incompetent witness.
"The standard for determining whether the evidence is legally sufficient to support a conviction is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim. App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original);
5 By his third issue, Medellin asks the Court to perform a factual sufficiency analysis and conclude that the conflicting evidence regarding Espinoza's cause of death rendered it factually insufficient. But in 2010, in Brooks v. State, the Texas Court of Criminal Appeals merged factual and legal sufficiency reviews; we now perform only one review of the evidence based on the United States Supreme Court's Jackson v. Virginia case. See Brooks, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson, 443 U.S. 307, 319 (1979)). As an intermediate appellate court, we are bound by the precedent of our state's highest criminal court. See Ervin v. State, 331 S.W.3d 49, 53 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd) ("As an intermediate court of appeals, we are bound to follow the precedent of the court of criminal appeals."); see also TEX. CONST. art. 5, § 5 (providing that the court of criminal appeals is final authority for criminal law in Texas); Flores v. State, No. 13-12-00606-CR, 2014 WL 1514129, at *2 (Tex. App.—Corpus Christi Apr. 17, 2014, pet. ref'd) (mem. op., not designated for publication) ("[W]e are bound to follow the decisions of the court of criminal appeals and have no authority to change the current standard of review."). We decline Medellin's invitation to perform an analysis abolished by the court of criminal appeals over four years ago. Medellin's third issue is overruled.
see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010). "The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given testimony, and it is also the exclusive province of the jury to reconcile the conflicts in the evidence." Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (citing Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)).
We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. Medellin committed the offense of murder, as charged in the indictment in this case, if he "intentionally or knowingly cause[d] the death" of Espinoza by striking her in the head and/or chest with his hands or fists. See TEX. PENAL CODE ANN. § 19.02(b)(1).
We have reviewed all of the evidence presented at Medellin's trial and believe there was ample evidence to prove the cause of death alleged in the indictment. It is undisputed that Medellin and Espinoza were engaged, lived together, and had a fivemonth-old baby. Espinoza suffered from severe scoliosis that caused her to develop a deformed chest and abdomen.
On the night of July 30, 2010, Medellin drove Espinoza to the emergency room because she was not breathing. The nurse who met them at their vehicle testified that, *8 on arrival, Espinoza did not have a pulse and was not breathing; she also testified that Espinoza had bruising on her face and hands and that "fresh blood" was flowing from Espinoza's nose. Espinoza was eventually resuscitated but remained in a coma. The doctor who treated Espinoza in the emergency room testified that Espinoza had "obvious trauma to the face, head, and chest, as well as the abdomen." He testified that Espinoza's pupils were "fixed" and "dilated," which meant a "high likelihood of brain injury." He testified that a CT scan showed air outside of Espinoza's lungs and stomach; he testified that "there are a lot of causes" for these conditions, "but in this case the most likely scenario was from trauma—blunt trauma."
There was further testimony that Medellin acted belligerently in the waiting room of the hospital. Police officers who arrived at the hospital to speak with Medellin testified that his knuckles appeared swollen. Medellin told the officers that he and Espinoza had been arguing earlier that day. Officers who were dispatched to Medellin and Espinoza's apartment testified that the apartment was in disarray; a lamp was overturned, and they recovered clumps of hair from the floor. Forensic investigators later discovered tissue attached to the hair, which indicated that the hair was pulled out and that it did not fall out naturally.
After being in a coma for nearly four months, Espinoza was removed from life support and died. The medical examiner who performed Espinoza's autopsy, Dr. Jennifer Rulon, testified that Espinoza's scoliosis caused her abdomen to be twisted, leaving her with a small right lung and normal-sized left lung. Rulon testified that Espinoza died " as the result of complications of anoxic encephalopathy," or brain damage *9 and lack of oxygen to the brain. Rulon testified that she examined Espinoza's medical records and the police reports and, from those, determined that Espinoza's condition was caused by an assault; thus, Rulon testified, Espinoza's "manner of death was determined to be a homicide."
Finally, a friend of Espinoza's testified that on the night before Espinoza was rushed to the hospital, she had visited Espinoza at her and Medellin's apartment. The friend testified that Espinoza "was very scared and afraid" that Medellin was going to "hurt her." Espinoza told her friend that, in the past, Medellin had "pulled her hair" and unplugged her oxygen tank. Espinoza told her friend that Medellin beat her after he had been drinking, and because Medellin and a friend were drinking that evening, Espinoza was scared he would hurt her afterward.
Medellin seems to argue that the evidence was insufficient because the testimony of the State's expert, Dr. Rulon, and his defense expert as to Espinoza's cause of death conflicted. But it is precisely the job of the jury to resolve conflicts in the evidence, and the jurors here were entitled to believe the State's expert over Medellin's. See Wesbrook, 29 S.W.3d at 111.
Medellin also argues that the jury was not entitled to consider the testimony of Dr. Rulon because she was incompetent. However, the record in this case shows that Medellin made no objections to the testimony of the State's expert regarding Espinoza's cause of death, so the competence of the expert was not an issue brought to the jury's attention. Regardless, we consider all the evidence in the record in our sufficiency review, whether or not properly admitted. See Powell v. State, 194 S.W.3d 503, 507 *10 (Tex. Crim. App. 2006) ("[A] reviewing court is permitted to consider all evidence in the trial court record, whether admissible or inadmissible, when making a legal-sufficiency determination."); Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001) ("When conducting a sufficiency review, we consider all the evidence admitted, whether proper or improper."). So it is irrelevant whether the testimony of the State's expert was incompetent and therefore inadmissible.
Rather, from the evidence outlined above, a rational jury could have concluded that Medellin beat Espinoza on her chest and head with his hands: when she arrived at the hospital, Espinoza had bruising on her chest, abdomen, face, and head; Medellin admitted that he and Espinoza had been arguing and was observed to have swollen knuckles; Dr. Rulon testified that the injuries that led to Espinoza's death, her brain damage and lack of oxygen to her brain, were caused by an assault; and there was evidence that, the night before Espinoza was taken to the hospital with her injuries, she had feared that Medellin might beat her.
Having viewed the evidence in the light most favorable to the verdict, we conclude that from the evidence outlined above, the jury in this case could have rationally found, beyond a reasonable doubt, that Medellin caused Espinoza's death by striking her head and/or chest with his hands or fists. See Johnson, 364 S.W.3d at 293–94. We overrule Medellin's second issue.
III. Jury Charge
By his fourth issue, Medellin argues that the jury charge contained an erroneous instruction regarding the statute of limitations for aggravated assault causing serious *11 bodily injury to a family member. Medellin argues that the instruction stated that there was no statute of limitations when, in fact, there is a two-year statute of limitations for that offense.6 Medellin argues that the offense of aggravated assault was committed more than two years before the indictment in this case. Medellin argues that this instruction caused him egregious harm.7
We note at the outset that Medellin's argument is inadequately briefed. He provides no law on charge error and no analysis as to why the error, if any, caused him egregious harm. See TEX. R. APP. P. 38.1(i).
But even if the issue was adequately briefed, it lacks merit. First, contrary to Medellin's assertion, the instruction in the charge regarding limitations states, "The statute of limitations for the offense of Aggravated Assault with a Deadly Weapon Causing Serious Bodily Injury to a Member of the Household is two (2) years." We believe it is a misstatement of the record to assert that the trial court entirely failed to inform the jury of the applicable statute of limitations.
Medellin may be referring to the next sentence in the limitations instruction, which reads as follows: "Therefore, proof that the offense of Murder and Aggravated Assault *12 with a Deadly Weapon Causing Serious Bodily Injury to a Member of the Household, if any, occurred prior to the filing of the indictment on April 13, 2011 is sufficient." To the extent that this sentence implies that there is no statute of limitations for aggravated assault, we still find no harm. See Gillette v. State, 444 S.W.3d 713, 730–31 (Tex. App.—Corpus Christi 2014, no pet.) (citing Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008)) (other citations omitted) ("Jury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory."). Even if the charge clearly instructed the jury that the applicable statute of limitations is two years, Medellin would have gained no valuable right or defensive theory. The indictment alleged that the aggravated assault offense was committed on July 30, 2010. The indictment in this case was filed on April 13, 2011. In other words, the indictment was filed less than a year after the alleged offense, which was well-within the two-year statute of limitations. A corrected charge would have provided Medellin with no benefit. We overrule his fourth issue.
IV. Comments on Silence
By his fifth issue, Medellin argues that the prosecutor's "repeated comments" on Medellin's failure to testify deprived him of a fair trial. We note first that Medellin provides no record cites to guide the Court to these "repeated" comments within the six-volume trial record.8 See TEX. R. APP. P. 38.1(i). Regardless, in his brief, Medellin concedes that defense counsel lodged no objections to these comments. He therefore failed to *13 preserve this complaint for our review. See TEX. R. APP. P. 33.1(a); Brewer v. State, 367 S.W.3d 251, 253 (Tex. Crim. App. 2012). We overrule Medellin's fifth issue.
V. Admission of Testimony
A. Expert Testimony
By his sixth issue, Medellin argues that the trial court erred in allowing the emergency room physician who treated Espinoza to testify that Medellin's hands were a deadly weapon. By his seventh issue, he argues that the trial court erred in allowing the medical examiner who performed Espinoza's autopsy to testify that Espinoza's death was a homicide. Medellin argues that this testimony involved legal conclusions beyond the doctors' expertise. But Medellin made no objections to the foregoing testimony. He therefore failed to preserve these complaints for our review. See TEX. R. APP. P. 33.1(a); Reyna v. State, 168 S.W.3d 173, 177–79 (Tex. Crim. App. 2005). We overrule his sixth and seventh issues. B. Police Officer
By his tenth issue, Medellin argues that "the admission of testimony of officers that the deceased's wounds were defensive" deprived Medellin of a fair trial. Again, we note that Medellin provides no record cites to guide the Court to the complained-of "testimony of officers" within the six-volume trial record. See TEX. R. APP. P. 38.1(i). But in our review of the record, we found that two New Braunfels Police Department officers testified that, based on their experience with assault cases, they believed the bruises on Espinoza's hands were defensive wounds. Medellin made no objections to this testimony. He therefore failed to preserve this complaint for our review. See TEX. R. *14 APP. P. 33.1(a); Reyna, 168 S.W.3d at 177–79. We overrule Medellin's tenth issue.
VII. Improper Argument
A. Argument on the Jury Charge
By his eighth issue, Medellin argues that the prosecutor made an improper comment during her closing argument when she suggested to the jurors that they could use Medellin's prior convictions in their deliberations on his guilt in this case. Medellin did not object to this comment, so failed to preserve this complaint for our review. See TEX. R. APP. P. 33.1(a); Mays v. State, 318 S.W.3d 368, 394 (Tex. Crim. App. 2010) ("[W]e will not review the propriety of the prosecutor's arguments, [where] appellant failed to object to those arguments at trial."). We overrule his eighth issue. B. Comments About Domestic Violence
By his ninth issue, Medellin argues that the prosecutor made an improper comment during closing argument when she suggested that the defense's evidence attempting to attribute Espinoza's injuries to her underlying health problems "sound[ed] like a lot of excuses we hear in domestic violence cases." Again, Medellin did not object to this comment, so failed to preserve this complaint for our review. See TEX. R. APP. P. 33.1(a); Mays, 318 S.W.3d at 394. We overrule his ninth issue.
VIII. Prior Offenses During Punishment
In five issues, Medellin complains of the trial court's admission and consideration, during the punishment stage of Medellin's trial, of evidence related to the prior convictions alleged by the State in the indictment to enhance Medellin's punishment. A. Admission of Evidence
1. Gang Involvement
By his eleventh issue, Medellin argues that the trial court deprived him of a fair trial by admitting testimony from Detective Jason Cline of the Comal County Metro Narcotics Task Force that identified Medellin as a gang member. Medellin argues that this testimony "deprived [him] of an individualized punishment because he was made responsible for the criminal acts of others." Medellin lodged no objections during the entirety of Detective Cline's testimony. He therefore failed to preserve this complaint for our review. See TEX. R. APP. P. 33.1(a); McFarland v. State, 928 S.W.2d 482, 511–12 (Tex. Crim. App. 1996), overruled on other grounds, Mosley v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998) (holding that a defendant failed to preserve error concerning the admission of evidence during the punishment phase of trial where the defendant did not object). We overrule Medellin's eleventh issue.
2. Fingerprint Expert
By his twelfth issue, Medellin argues that the trial court erred in admitting State's exhibit 75, which included a fingerprint card connecting him to the alleged prior conviction for burglary of a non-habitation. Medellin argues that the testimony of the State's witness as to the fingerprint card failed to show that the fingerprints on the card were Medellin's. Therefore, Medellin argues, the exhibit was inadmissible to show Medellin as the perpetrator of the prior burglary offense. Medellin provides no legal authority or substantive argument in support of this issue. We therefore conclude that this issue has been inadequately briefed, and Medellin has waived our review. See TEX. R. APP. P. *16 38.1(i). Medellin's twelfth issue is overruled.9 B. Misclassified Offense
By his thirteenth issue, Medellin appears to argue that the trial court erred in allowing his punishment range to be enhanced to habitual-offender status, see TEX. PENAL CODE ANN. § 12.42(d) (West, Westlaw through 2013 3d C.S.), because the classification of the second alleged prior conviction, burglary of a non-habitation committed on April 7, 1990, was reduced by the Legislature in 1994 from a second-degree felony to a state jail felony. See id. ("A previous conviction for a state jail felony . . . may not be used for enhancement purposes under [the habitual-offender] subsection."). In our review of the record, we have found no objection by Medellin on these grounds to either the jury charge, which allowed the jury to assess a punishment in the habitual-offender range, or the judgment, which imposed the habitual-offender sentence. As such, Medellin failed to preserve this issue for our review. See TEX. R. APP. P. 33.1(a).
And even if Medellin had preserved this issue, a prior felony conviction may be used to enhance punishment for a subsequent offense, even if the prior conviction has since been reclassified as a misdemeanor. See Alvarado v. State, 596 S.W.2d 904, 906 (Tex. Crim. App. [Panel Op.] 1980); Boren v. State, 182 S.W.3d 422, 423 (Tex. App.— Fort Worth 2005, pet. ref'd). The trial court therefore did not err in allowing Medellin's punishment to be enhanced under the habitual-offender statute. We overrule Medellin's thirteenth issue. *17 C. Submission of Priors to Jury
By his fifteenth issue, Medellin argues that the trial court erred in failing to submit, at punishment, a question to the jury on his prior convictions. Generally citing McGee v. State as support, Medellin argues that even though he pleaded true to the prior convictions, the State was nonetheless required to provide evidence supporting the pleas of true and failed to do so in this case. See 725 S.W.2d 362 (Tex. App.—Houston [14th Dist.] 1987, no pet.). McGee stands for no such proposition.
McGee involved the guilt-innocence stage of the defendant's trial, not the punishment stage. Id. at 364. In McGee, the State attempted to use an extraneous offense to prove the defendant's intent to commit the charged offense and his identity as the perpetrator of the charged offense. Id. at 364–65. The trial court admitted the evidence of the extraneous offense, and the defendant complained on appeal that the evidence was prejudicial because the evidence did not show intent or identity and the State failed to prove the defendant was the perpetrator in the extraneous offense. Id. at 364–66. In short, the facts and law involved in McGee are completely inapposite to Medellin's fifteenth issue.
Rather, we are guided by the well-established law that, at the punishment stage, a defendant's pleas of true to prior convictions is sufficient evidence to support the underlying enhancement allegations. See Wilson v. State, 671 S.W.2d 524, 526 (Tex. Crim. App. 1984); Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App. 1981); Torres v. State, 391 S.W.3d 179, 184 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) ("Once a defendant pleads true to the enhancement allegations, the State is relieved of its burden *18 to prove the allegations because a plea of true constitutes evidence and sufficient proof to support the enhancement allegation." (citations and internal quotations omitted)). Medellin pleaded true to both alleged prior convictions. He cannot now complain on appeal that the evidence was insufficient because the issue was resolved by his pleas. See Harvey, 611 S.W.2d at 111. The trial court committed no error in declining to submit the issue of Medellin's prior convictions to the jury. We overrule Medellin's fifteenth issue.
IX. Ineffective Assistance of Counsel
By his sixteenth issue, Medellin argues that defense counsel was ineffective because he failed to object to the "critically prejudicial" testimony about Medellin's gang affiliation that was elicited by the State at Medellin's punishment hearing. We disagree— Medellin cannot show that he was prejudiced by counsel's failure to object because, ultimately, the complained-of testimony was admissible.
We apply the same two-prong Strickland standard of review for ineffective assistance of counsel claims in both the guilt/innocence phase of trial and the punishment phase of trial. Hernandez v. State, 988 S.W.2d 770, 772–74 (Tex. Crim. App. 1999). First, the appellant must demonstrate counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Strickland v. Washington, 466 U.S. 668, 688 (1984). Second, the appellant must establish counsel's performance was so prejudicial, it deprived appellant of a fair trial. Id. at 691. To satisfy this prong, appellant must show that a reasonable probability exists that, but for counsel's errors, the result of the proceeding would have been different. Id. at 694.
The procedures to be followed at the punishment stage of trial and the evidence that may be considered in determining punishment are the subject of article 37.07 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 37.07 (West, Westlaw through 2013 3d C.S.). This statute authorizes the admission of evidence in the punishment phase of trial as to any matter the court deems relevant to sentencing, "including but not limited to the prior criminal record of the defendant, his general reputation, his character, [and] an opinion regarding his character . . . ." Id. art. 37.07 § 3(a)(1). Evidence concerning a defendant's gang membership is relevant character evidence at the punishment stage so long as the evidence informs the jury of "the types of activities the gang generally engages in so that they can determine if his gang membership is a positive or negative aspect of his character." Beasley v. State, 902 S.W.2d 452, 456 (Tex. Crim. App. 1995); see Jessop v. State, 368 S.W.3d 653, 692 (Tex. App.—Austin 2012, no pet.) ("The court of criminal appeals has recognized that when the defendant is charged with an act of violence, membership in [a gang] with a reputation for violent activities is relevant evidence because it relates to his character.") (citation omitted).
Here, Detective Cline testified that from his conversations with Medellin about his time in prison and his examination of Medellin's various tattoos, he believed that Medellin was a member of the Orejones gang, a subset of the Tango Blast gang, which operates both inside and outside of Texas prisons and jails. Detective Cline testified that the Orejones gang is primarily known for narcotics trafficking. Detective Cline also testified that the Orejones gang has been involved in numerous violent confrontations with rival *20 gangs. This testimony was admissible at Medellin's punishment hearing because it included specific information about the activities of the gang with which Medellin was affiliated and gave the jury a means by which to assess Medellin's character. See Beasley, 902 S.W.2d at 456. Thus, even if defense counsel would have objected to the gang evidence, the trial court would have properly overruled the objection. Medellin therefore cannot show that but for defense counsel's error, if any, the result of his punishment hearing would have been different. We overrule Medellin's sixteenth issue.
X. Cumulative Error
By his seventeenth issue, Medellin complains that cumulative error deprived him of a fair trial. But Medellin provides no applicable authority and no argument in support of this issue. We therefore conclude that this issue has been inadequately briefed, and Medellin has waived our review. See TEX. R. APP. P. 38.1(i). Medellin's seventeenth issue is overruled.
XI. Conclusion
We affirm the judgments of the trial court.
NELDA V. RODRIGUEZ Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 2nd day of April, 2015.
Footnotes
[1] Medellin was also indicted for injury to a disabled individual, but the State did not pursue that charge at trial. See TEX. PENAL CODE ANN. § 22.04(a)(1) (West, Westlaw through 2013 3d C.S.). 2Pursuant to a docket-equalization order issued by the Supreme Court of Texas, this appeal has been transferred to this Court from the Third Court of Appeals in Austin, Texas. See TEX. GOV'T. CODE ANN. § 73.001 (West, Westlaw through 2013 3d C.S.).
[3] Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4.
[4] We note that Medellin's motion was not accompanied by his affidavit or the affidavit of two other credible residents of Comal County. Nonetheless, we will address Medellin's substantive complaint in the interest of justice.
[6] The State notes that the correct statute of limitations for aggravated assault is an unsettled issue. See State v. Bennett, 415 S.W.3d 867, 869 (Tex. Crim. App. 2013) But as discussed later in this section, even assuming that the correct statute of limitations is two years, we still find no error in the charge.
[7] Because no objection was lodged as to the limitations instruction in the charge, Medellin correctly states that he must show that the erroneous instruction caused him egregious harm. See Gillette v. State, 444 S.W.3d 713, 727 (Tex. App.—Corpus Christi 2014, no pet.) (op. on reh'g) ("[W]here the error is urged for the first time on appeal, a reviewing court will search for 'egregious harm.'") (citing Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998) (quoting Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994))).
[8] Medellin does refer this Court to the following sentence from the prosecutor's closing argument: "Therefore, proof that the offense of murder or aggravated assault with a deadly weapon, causing serious bodily injury to a member of the household, if any, occurred prior to the filing of the indictment on April 13th, 2011, is sufficient." We disagree that this is a comment on Medellin's failure to testify.
[9] Medellin's fourteenth issue appears to be a restatement of his eleventh and twelfth issues, on which we have already ruled above. We decline to address these issues a second time so do not reach his fourteenth issue. See TEX. R. APP. P. 47.1.