### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 7 -00 513 -CR

F r oy lan P adi lla , A ppe lla nt

v . The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 147TH JUDICIAL DISTRICT NO. D-1- DC-06 -20 4578 , HO NORAB LE WI LF ORD F LOW ERS , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N A jury found appe llant Froy

l an P ad i l l a g uilty

of eng ag ing in or g anized criminal activity and assessed hi s punishment at nine y ear s’ imprisonment. See Tex. Pena l Code Ann. § 71.02 (West Supp. 2008). Appellant contends that the district c ourt err ed by overr uling his motion for a
se ve ra nc e , th a t hi s tr ia l c ouns e l r e nd e re d ineffect ive a ssi sta nc e , a nd that th e e vid e nc e is l e g a lly and fa ctually

insufficient to sustain the verdict of g uilt. W e over rule these issues and af

firm the conviction.
BACK GR OUND

On the eve ning in que stion, severa l people including appellant a nd h i s friend Rodolfo Orive we re g ather ed on the g rounds of a n Austin middl e school pra cticing dance s for a n upcoming quincea

nera . A ca

r drove past the school, and ha nd signs we re e x chang ed betwe en the occupa nts of the ca

r and O rive. The driver of the ca r, Vidal L opez, told his companions that he ha d2

ha d p ro ble ms w ithOr ive in t he pa st. Al tho ug h h is f

ri e nd s urg e d h im t o d

ri ve on , L op e z de c ide d to sto p and c on fr on t Or ive
. Whe n the y sa w L op e z sto p, a

pp e lla nt, Or ive , and Vi c tor Sarm ie nto ra n to Orive’ s car , retrie ved a pistol belong ing to Sar miento, and re turned to the re hear sal scene
. After stopping, L opez a

nd two of his c ompanions approa ched the quincea nera g roup and announc ed that L opez wanted to fig ht Orive. Orive acc epted the c halleng e. I t was ag ree d that this would be a “c lean f

ight” betwee n the two using no wea pons. The combatants and a numbe r of spectators moved to the re ar pa rking lot of the school, and the f ight c ommence d
. L opez soon got the upper hand, for cing Orive to his knee s and plac ing him in what was descr ibed as a head l ock or
c ho ke ho ld. Som e wi tne sse s te sti fi e d that Or ive ’s fa c e wa s tur nin g purp le and that he a

pp e a re d to have tr ouble bre athing . Another w itness testified that Orive’ s life d i d n o t ap p ea r t o be in dang er, althoug h he was clea

rly losing the fig ht. Orive himself testified, “I couldn’t talk, I couldn’t bre athe, Icouldn’t do any

thing. I was a fra id for my

life.” At this point, appellant walked ove r to the two fig hters, pointed Sarmiento’s pistol at L opez, and orde red him to rele ase Orive. L opez complied wit h this order. Or ive then stood, took the pistol from appellant, a nd fata lly shot L opez just below his right ey e. Orive te stified that he shot L op e z be c a

us e he wa s “ a fr a id f

or my lif e .” Ac c or din g to Or ive , L op e z tol d him that “if we wo uld not shoot him , he wa s g oing to do it to us,” and put his hand behind his back. Or ive testified that he believe d that if he did not shoot L opez, L opez would shoot him
. Other witnesses testified that the y did no t he ar L op e z say any

thi ng to Or ive , and the re is no e vid e nc e that L op e z or any on e wi th him was arme d
. One witness testified that Orive told L opez “y ou are now f-- -ed” befor e sh oo tin g him
.3 Appellant and O rive lef

t the scene in a black car

and drove to a house a

fewblocks
awa y , wher e they

wer e see n speakingto a man and walking to the side of the house befor e running
a wa y on fo ot. P o l i c e l a t e r f o u n d s e v e r a l b u l l e t s u n d e r

t h e a i r c o n d i t i o n i n g u n i ta tt h e s i d e o f t his house. Ne ar midnig ht, appellant and O rive we nt to the home of L uz Marie Galleg o, the mother of Orive’ s former

g irlfriend. G alleg o testified that Orive “looked bad” and that “[h] e couldn’ t speak very well.” Or ive told Galleg o that he had “ killed a g uy ” an d was thinking of g oing to Me x ico. Appellant and O rive we re a rre sted later that night whe n a Jeep Cheroke e i n whi ch they wer e occupa nts was stopped for

speeding . Both men g ave f alse n ames to the off

icer s. Severa l packe d suitcases we re f

ound in the J eep.

SUF F ICIENCY OF EVIDENCE The indictment allege d and the jury found that appe llant assaulted L opez with a deadly wea

pon as a member of a criminal street g ang . Se e id
. §§ 22.02(a) (2) ( ag g ravated assault), 71 .0 2( a )( 1) (e ng a g ingin o rg anize d c ri min a l a c tiv ity ). Ap pe lla

nt c on te nds th a t th e e vid e nc e is fa c tua lly ins uf fi c ie nt t o s up po rt

the jur y ’s fi nd ingth a

t h e c o mm i tt e d

a n unju sti fi e d a g g ra

vate d a ssa ult
an d l ega l l y i n s u ff i ci en tt o s u

p p o rt t h e ju ry ’s fi n d i n g t h at h e w as a m em b er o f a cr i m i n al s t re et gan g. Agg ra v ate d As sa ult

The jury char g e included an ins truction on the def ense of third persons. Se e id
. § 9.33 (West 2003). Appellant urg es that the evidenc e is factua lly insufficient to support the jury ’s finding that he wa s not justi fied in assa ulting L opez in defense of Orive
.4 When there is a c halleng e to the fa ctual suff iciency o f t h e evidenc e to support the reje ction of a de fense , we a pply the usual fa ctual suff

iciency standard of

revie w. Zul ian i v. S

tat e , 97 S
. W
. 3 d 5 8 9 , 5 9 5 ( T e x. C r i m . A p p . 2 0 0 3 )
. I n a f a c tu a l s u f f i c i e n c y r e v i e w , a l l t h e e v i d e n c e is considere d equally , including the testimony of def ense w itnesses and the e x istence of alternative hy potheses. Cle wis v . S

tat e , 9 22 S.W. 2d

12 6, 12 9 ( Te x. Cr im. Ap p. 19 96 ); Or ona v . S tat e , 836 S.W .2d 319, 321 (Tex. App.—Austin 1992, no pet.). Although due defere nce must be ac corde d the fa ct finder ’s deter

minations, particularly

t h o s e co ncer

ning the weig ht and cr edibility of the evidenc e, the r eviewingcourt may disag ree with the result in order to pr event a manifest injustice. J oh ns on v . S

tat e , 2 3 S. W.3 d 1 , 9 (T e x. Cr im. Ap p. 20 00 ); Cai n v . S tat e , 958 S.W .2d 404, 407 (Tex. Crim. App. 199 7 ). The e vidence will be deeme d fac tually insufficient if the e vidence
su pp or tin g the jur

y ’s fi nd ingis s o w e a k a s to make the fi nd ing c le arl y wr on g or manif e stl y un jus t, or if the f

inding is ag ainst the g reat weig ht and pr eponder ance of the available e vidence
. See W ats on v . S tat e , 2 04 S.W. 3d

40 4, 41 4- 15 (T e x. Cr im. Ap p. 20 06 ); Johnson , 23 S.W .3d at 11. A per son is just ified in using f orce or deadly forc e aga inst another to protect a third person if, unde r the c ircumstance s as the ac tor rea sonably believes them to be , the ac tor would be justified in using for ce or deadly forc e to protec t himself ag ainst the unlawful f orce or dea dly

forc e he re asonably

believes to be threatening the third p er s o n h e see ks to protect. Te x . Penal Code Ann. § 9 .3 3. I n oth e r w or ds , a pp e lla nt w a s ju sti fi e d in

us ingfo rc e or

de a dly fo rc e a g a ins t L op e z in defe nse of Or ive to the extent that Orive was justified in using such forc e ag ainst L opez in his own defe nse. Hu

gh es v . S tat e , 719 S.W .2d 560, 564 (Tex. Crim. App. 1986).5 The us e o f fo rce ag ainst another is not justified if the ac tor consente d to the exact forc e used or

attempted by

the other. Te x . P en al C o d e An n. § 9.31(b)( 3) (West Supp. 2008). A p p e ll an t ar g u e s th a t a lt

h o u g h O r iv e a g r e e d to f

ig h t L o p e z, h e d id n o t a g r e e to L o p e z’ s u s e of a choke hold that lef

t Orive unable to speak or breathe. The e vidence was undisputed, howe ver, that the par ties ag ree d only

that no wea

pons would be used in the f ight. The re is no basis in the evide nce for a ppellant’s asse rtion that L opez and Orive had ag ree d that the fig ht w ould be over, or would be temporar ily

suspended, if one of the fig hters fell to the g round. I t was neither manifestly

unjust nor
a g a ins t th e g re a t we ig ht o f t he a va ila ble e vid e nc e fo r t

he jur y to c on c lud e that O ri ve , b y a g re e ingto fi g ht L op e z, c on se nte d to the e xac t f or c e us e d b y

L op e z in the fi g ht. Ap pe lla nt a lso se e ks to i nv ok e the pr e su mpt ion that the us e of

fo rc e is r e a so na

ble if the ac tor knew or

had re ason to believe that the per son ag ainst whom the fo rc e wa s used wa s committing or attempting to commit murder. Id . § 9. 31 (a )( 1) (A ). Th is p re su mpt ion wa s a dd e d to section 9.31 eff

ective Septe mber 1, 2007, a nd was not in eff

ect at the time of this offense
. See Act of Mar . 20, 2007, 80th L eg ., R.S., ch. 1, §§ 2, 5, 2007 Tex. Gen. L aws 1, 2.

Considering all the evidenc e in a ne utral lig ht, we hold that it was not c lear ly wrong or manife stly

unjust for the jury

to find that appe llant was not justified in assaulting L opez with a deadly w e a p o n in d e f

e n s e o f O r iv e . M o r e o v e r , th is f in d in g w a s n o t a g a in s t th e g r e a t w e ig h t and preponde ranc e of the available evidenc e.
Ga ng M e mber ship Appellant conte nds that the evidenc e is legal l y insufficient to support the jury ’s finding that he assa ulted L opez as a membe r of a criminal stree t g ang . We may disturb the6

jury ’s finding only

if, afte r re viewing the evidenc e in the light most favor able to the f inding, we conclude t h at n o rational trier of fa ct could have found this element of the offe nse beyond a
rea sonable doubt. Se e J

ac k so n v . V irg ini a , 44 3 U .S. 30 7, 32 4 ( 19 79 ); Cla y ton v . S tat e , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007).

A cr iminal street g angis three or more pe rsons having a common identifying sig n or sy mbol or an identifiable le ader ship who continuously or re g ularly

associate in the commission of criminal ac tiviti es. Tex. Penal Code Ann. § 71.01(d) ( West 2003). The State soug ht to prove that
a ppell ant a

nd Or ive we re me mbe rs of

an A us tin

g angkn ow n a s th e Sou th S ide Cr ips , o r s imp ly Cr ips . D e te c tiv e Da

vid F ug itt , the ho mic ide de te c tiv e in c ha rg e of the inv e sti g a tio n o f t

his inc ide nt, testified that he wa s familiar with the South Side Crips. The detec tive testified that the Crips had more than thre e member s, had commo n s igns a nd identifying ma

rks, and we re r eg ularly

involved in c ri min a l a c tiv ity in Tr a vis County
. Ap pe lla nt argue s that “ me re ly sa

y ing it do esn ’t nece ssa

ri ly make it so,” but we must assume that the jury found the off

icer ’s testimony

to be cr edible. Pe rs on s w ho wi tn essed

the inc ide nt at th e mid dle sc ho ol t e sti fi e d th a t a pp e lla nt, Orive, a nd Sarmiento wer e wearing blue clothi ng . Austin police officer s testified t hat blue is a c olor favor ed by

the South Side Crips. L opez was wearingred shoe s, sugg esting that he wa s a member of a differ ent g ang . As one witness who was prese nt at the quincea nera rehe arsa l and saw the fig ht testified, “[Y]ou could tell kind of that it was g ang -re lated since t h ey we re wea ring blue and the other guy was we aringred.” One of the per sons who was in the car with L opez te stified that on the night f ollowing the shooting , Orive c alled him on the telephone and told him that “I shouldn’t say any thing a nd that Ishould tell my

friends that they

should say

nothing e ither bec ause if some body went down on his side they wer e also g oing to g o down on our side.”Th e re c or d c on ta ins a c op y of a ph oto g ra phof a ppe lla nt t a ke n f

oll ow inghis a rr e st 1 (State’s e x hibit 20), but the copy is not in color. There was a dditional evidence reg ardingOrive’ s membership in the South Si de Crips. An 2 office r wh o sear ched O rive’s be droom following his arre st testified that it was decor ated pr e do min antl y

in b lue . T he of

fi c e r r e c a lle d f

indin g s even or

e ig ht b lue ba

nd ann a s in Orive’ s bedroom. I n a notebook, Orive had written “vistaz o Bloods,” which t he off icer translated as “looking for blood,” a nd “B K al l d ay

ever y day .” This offic er a lso testified that “B K” wa s shorthand for

“blood killer,” a term commonl y used by the C rips. The trial c ourt instructed the jury to c on sid e r t

his e vid e nc e on ly

wi th r e sp e c t to Or ive ’s g uil t.

7 Fug itt testi fied that a

ppellant was w ear ing blue clothing a nd car rying a blue banda

nna
a t th e tim e of

his arr e st. Another of

fice r testified that membe rs of the Crips wor e blue ba ndannas 1 to show their g ang af

fi l i ati on. One of

the suitcases f

ound with appellant in the Jeep Cheroke e contained, in a ddition to a number of items of blue c lothing, a T-shirt (State’s exhibi t 17) on which
wa s w ri tte n the na

me s “ F ro y ” and

“ Jac kie .” Jac qu e lin e Di a z wa s a no the r p e rs on

in t he Jee p w ith appellant. Th is T
- s h ir

t a ls o h a d th e w o r d “ s lo b ” an d

th e in it ia ls “ B K ” o nit
. F u g itt t e s ti f ie d th at “slob” is a d er o gat ory

term for a member

of the B loods ga

ng and “B K” stands f

or “blood killer.” Also printed on t his shirt was the numbe r 78704 and the words “South Side.” F ug itt testi fied that 78704 is a postal code f

or South Austin. A sweatshirt (State’s exhibi t 18) was a lso found in the J eep. Printed on this shirt was a sy mbol with the words “Dove Spr i n gs ” s urroundinga hand, the number 27, a nd a flying dove
. Fug itt testi fied that the numbe r 27 wa s short for 78727, a nother South Austin postal code in which the Dove Spring s neig hborhood is located. The detec tive said that the hand w as making a g esture that meant “B K” or

“blood killer.” In State’s ex hibit 21, a photogr aph of a ppellant and Or ive, Orive a ppear s to be making the same ha nd g esture. 28 Vi e wi ng thi s e vid e nc e in the lig ht m os t f a vo ra ble to t he ve rd ic t, w e c on c lud e that a rational trier of fac t c ould c onclude be y ond a re asonable doubt that appellant wa s a member of the Sou th Sid e Cr ips and that the Cr ips are a c ri min a l str e e t g ang . Th e evi den ce i s l eg a lly
s u f f ic ie n t to s u

p p o rt th e ju

r y ’ s d e te r mi n a ti o n th a t a

p p e ll an t a s s a

u lt e d L o p e z a s a me mber of a
cr i m i n al s t re et gan g.
SEVERANCE

Orive w as indicted for

murderingL opez, and he a nd appellant we re tried toge ther afte r appe llant’s motion for a seve ranc e wa s denied. Appellant contends that the t rial court erre d by denying the sever ance .

Upon a timely

motion supported by

evidenc e, a de fenda

nt is e ntitled to a seve ranc e if his co-de fenda

nt ha s a previous admissible c onviction or if a joint trial would prejudice the moving de fe nd ant. Te x. Cod e Cr im. Pr oc . A nn . a rt . 3 6. 09 (We st 2 00 7) ; Qu all e yv . S tat e , 206 S.W .3d 624, 63 1 ( Te x. Cr im. Ap p. 20 06 ). I t is un dis pu te d that a pp e lla nt’ s mot ion to se ve r wa s tim e ly
. I t is a lso undisputed that Orive ha d no admissible previous convictions. Ther efor e, the issue is whe ther appellant met his burde n of demonstrating that he would be pre judiced by

a joint trial. To establish prejudice , a defenda nt must show a serious risk that a spec ific trial rig ht
wo u l d b e c o m p ro m i s edb y a j o i n tt ri al , o r t h at a j o i n tt ri al wo u l d p re v en tt h e j u ry

fr o m m ak i n g a reliable judgme nt about g uilt or innoc ence , and that the pr oblem could not be ade quately addre ssed by lesser curative me asure s, such as a limit ing instruc tion. Qu all e yv . S tat e , 206 S.W .3d 624, 636 (Te x. Cr im
. A p p . 2 0 0 6 )
. A p p e ll an t a r g u e s th a t h e w a s e n ti tl e d to a s e v e r an c e a s a

matt e r o f la w beca use he de monstrated that ther e wa s a sub s t an t ial risk that the jury would find him guilty

byAcc ording to the leading commentar y o n T ex as cr i m i n al proc edure , the cour t of criminal 3 appea ls has long r eg arde d a co-de fenda nt’s previous admissible conviction as the only mandatory g round for

sever ance under a

rticle 36.09 an d h as t reated the pre judice provision as be ing discretionar

y with the trial court. 43 Ge org e E. Dix & Robert O. D awson, Texas Practice : Cri mi na l Prac tic e an d P ro c e du re § 3 3
. 4 1 (2 d ed
. 2 0 0 1 ) ( ci t i n g Ro bin so n v . S tat e , 449 S.W .2d 239, 24 0- 41 (T e x. Cr im. Ap p. 19 69 ); se e als o Mul de r v. S tat e , 707 S.W .2d 908, 915 (Tex. Crim. App. 1986). More rec ently , some opinions have sugg ested that prejudice to the m oving defe ndant may be either a man d a to r

y o r a d is c r e ti o n ar

y g r o u n d f o r s e v e r an c e u n d e r

th e s tatute , d e p e n d in g o nthe nature or deg ree of the pre judice. Se e, e .g ., Ma rsh v . S tat e , 115 S. W
. 3 d 709, 717 (T e x. Ap p. —A us tin

20 03 , p e t. r e f’ d) (s ta tin g that a bs e nt e vid e nc e of pr e

jud ic e to o ne de fe nd a nt i n joi nt t ri a l or e vid e nc e that on e de fe nd ant h a s p ri or a dmi ssi bl e con vic tio n, g ra nt o f s e ve ra

nc e is discretionar

y ; discretion is abused only if movant satisfies hea vy burden of showing clea

r pre judice); Kin g v . S tat e , 17 S.W .3d 7, 16-17 (Tex. App.—Houston [14t h Dist.] 2000, pet. re f’d) (same)
. But se e Pe te rso n v . S

tat e , 961 S.W .2d 3 08, 310 (Tex. App.—Houston [1s t Dist.] 1997, pet. re f’d) (stating that sever ance pursuant to ar ticle 36.09 is not matte r o f ri gh t but rests within sound dis cre tion of trial court)
. 9 association with Orive
. Alternatively , appellant a rg ues that the trial c ourt abused its discre tion by denying the sever ance beca use evide nce w as admitted at the joint t rial that would not have been
a dmi ssi ble if

a pp e lla nt h a d b e e n tri e d sep arate ly
. We co nc lud e that app e lla nt d id n ot s ho w h ims e lf entitled to a seve ranc e and that the t ri al co u rt did not abuse its discretion by denying the
sever ance motion. 3

I n his motion to sever , appellant urg ed that he would be prejudice d by a joint trial with Orive “ beca

use the qua

ntity of evide nce a g ainst [Orive] i s g rossly dispr o p o rt i o n at e to that ag ainst [appellant] .” At the hear ing on the motion, appe llant’s counsel re peate d this contention and
ur g e d th a t th e e vid e nc e re g ard ingOr ive ’s mur de r o f L op e z “[h a d] no thi ngto d o” wi th t he of fe ns e for whic h appellant wa s on trial. After the prosec uto r b ri ef

l y summarized the fac ts, the court expressed the view that even if appellant wer e tried separ ately , the fac t that O rive mu rd ere d L opez would be admissible to place a ppellant’s off

ense in context. The court denied the motion on thi s b a sis
.10 Both of a ppellant’s ar g uments—that he wa s entitled to a mandatory sever ance and that the trial court abused its discr etion—are premised on the a ssertion that Orive’ s murder of L opez was irr eleva

nt to appellant’s g uilt and would have be en inadmissible had appe llant been trie d
se pa rate ly . B ut a s th e tr ia l c ourt no te d a t th e he ari ngon the se ve ra

nc e mot ion , a

pp e lla nt’ s a ssa ult of L o p e z an d O r iv e ’ s mu r d e r o f L o p e z w it

h th e s a me p is to l w e r e s o c lo s e ly in te r r e late d that they formed a n indivisi ble cr iminal transaction; in other words, the fact of t he murder would have be en
a d mi s s ib le a t a s e p ar a te tr ia l a s s a me - tr an s a c ti o n c o n te xtu a l e v id e n c e . See Pribl e v . S tat e , 175 S
. W
. 3 d 724, 731-32 (Te x . Crim. App. 2005). Althoug h some of the e vidence reg ardingthe
mur de r, su c h a s th e a

uto ps y re po rt , and so me of the e vid e nc e re g ard ing Or ive ’s g ang tie s a nd thr e a ts to witnesses might not have been a dmitted had appellant be en tried se parately , much of thi s evidenc e was introduce d with a limiti ng instruction so as to avoid prejudicingappellant. Se e su pra , note 2. Appellant points to no evidenc e that the limiti ng instructions were ineffe ctive or that the jury was
un a ble to d ist inguis h b e tw e e n th e e vid e nc e of Or ive ’s g uil t and the e vid e nc e of a pp e lla nt’ s g uil t. Appellant did not show that there was a serious risk that a specific trial rig ht would be compromised by a joi nt t ri a l, o r t hat a joi nt t ri a l w ou ld p re ve nt t

he jur y fr om ma kin g a re lia

ble jud g me nt a

bo ut h is g uilt or innocenc e. The trial court’s de nial of the re quested seve ranc e wa s not an abuse of discretion
or oth e rw ise e rr on e ou s.
EF F EC TIV EN ESS OF CO UN SEL

Appellant’s final contention is that his trial counsel rende red ineffe ctive assistanc e. To preva il on this claim, appellant must show that counsel made such ser ious error s that she was not functioning eff

ectively as counse l and that t hese error s prejudice d his defe nse t o such a de g ree that11

he wa s deprived of

a fa ir trial. See Strick land v. W

ashington , 466 U.S. 668, 687 (198 4); He rn an de z v . S tat e , 9 8 8 S.W .2d 770, 771-72 (Te x . Crim. App. 1999). I n revie wing a cla im of ineffe ctive assistanc e, we must indulge a st rong presumption that counsel’s c onduct fe ll within t he wide ra ng e of r easona

ble profe ssional assistance. J ac k so n v . S tat e , 8 77 S.W. 2d 76 8, 77 1 (T e x. Cr im. Ap p. 19 94 ). To ov e rc ome thi s p re su mpt ion , a ny a lle g a tio n o f i ne ff

e c tiv e ne ss m

us t be fi rm ly fo un de d in

the reco rd and

the re c or d mu st a ff

ir ma tiv e ly de mon str a te the a lle g e d in e ff e c tiv e ne ss. Ma lle tt v . S

tat e , 65 S.W .3d 59, 63 (Tex. Crim. App. 2001). Appellant ar g u es t hat his trial counsel wa s ineffe ctive in three respe cts. First, he complains that counsel de clined the tria l court’s off er t o i n s t ruct the jury

on the lesser

included offe nse of a g g ravated assault. The re is no evide nce in the r ecor d as to why counsel did not w ant the l e s s e r i n c l u d e d o f f e n s e i n s t r u c t i o n , b u ti ti s l i k e l y t h a ts h e w a s p u r s u i n g ana l l

- o r - n o t h i n g s t r a t e g y. Se e Ex pa rteW hit e , 1 60 S.W. 3d

46 , 5 5 ( Te x. Cr im. Ap p. 20 04 ); Sh an k lin v . S tat e , 190 S.W .3d 154, 161 (Tex. App.—Houston [1st Dist.] 2005), pet. dism’d, improvide ntly granted , 211 S.W .3d 315, 31 6 ( Te x. Cr im. Ap p. 20 07 ). Ap pe lla nt c omp la ins tha

t th is s tr a te g y

wa s a mis take be c a

us e the Sta te had fa iled to prove that he was a member of

a cr iminal street g ang . We have a lrea dy found the
e vid e nc e su ff

ic ie nt i n thi s regard, bu t if the State ha d in

fa c t f a ile d to pr ov e that a

pp e lla nt w a s a member of a gang , counsel’s strateg y would have be nefitted a ppellant bec ause the jury , or this Court
on appea l, w ould have be en re quired to re nder a n acquittal. Se e Ha

y ne s v . S tat e , No. PD-1923-06, 20 08 Te x. Cr im. Ap p. L EX I S 56 9, a t *1 (Tex . Cr im. Ap p. Ap r. 30 , 2 00 8) ; Col lie r v . S tat e , 99 9 S. W.2 d 7 79 , 7 82 (T e x. Cr im. Ap p. 19 99 ). Al tho ug h, un de r the c ir c ums tanc e s a s th e y a c tua lly
wer e, a differ ent attorne y might have acc epted the tr ial court’s of fer , we c annot say

that no
rea sonable prof

essional attorne y would have chosen the strategy employ ed by

appellant’ s counsel in this case.12 Next, appellant urg es that his trial counsel wa s ineffe ctive be c a u s e s he fa iled to object to an im proper jury argument by the prosecutor. While discussing appe llant’s claim that he a ssaulted L opez in de fense of Orive, the prosec utor argued, “[I ]t ’s not e noug h for him to say Iwas prote cting
m y f r i e n d
. T h e l aw i s v e r

y s p e c i f i c o n w h a t m u s t o c c u r

t o b e e n t i t l e d

t o a j u s t i f i c a t i o n . S p e c i f

i c a l l y, the use of de adly

forc e ca n only be used w hen nec essar

y to the deg ree n ece ssary , when a nd to the de g re e y ou be lie ve it to be ne c e ssa ry .” Th e pr os e c uto r ad de d, “ B ut t he re is m or e . I t ha s to be a g a ins t the use or attempted use of unlaw ful dea dly forc e.” Ap pellant ar g ues that the prose cutor wa s mis take n in c ha

ra c te ri zing a

pp e lla nt’ s c on du c t a s the us e of de a dly fo rc e . Th e State dis pu te s th is,
asser ting that a person who points a loa ded pistol at another use s deadly forc e. Neither appellant nor

the State mentions the trial court’s instruction to the j ury that “[a] t h re at t o cause death or serious bodily

injury by the produc tion of a we apon, as longas the d e f e n d an t ’ s p u r

p o s e i s l i m i t e d

t o c r e a t i n g ana

p p r e h e n s i o nt h a t h e w i l l u s e d e a d l y f o r c e i f n e c e s s a r y, does not constitute the use of de adly forc e.” See Tex. Pena l Code Ann. § 9.04 (West 2003). In light of this instruction, we ar e conf ident that any

err or in the prose cutor’s a rg ument did not effe ct the jury ’s ver dict. Moreove r, we must assess the totality of def ense c ounsel’s re prese ntation, rather than i s o l ated acts or omissions. W ilk e rso n v . S

tat e , 7 2 6 S. W. 2 d

5 4 2 , 5 4 8 ( T e x. Cr im
. A p p . 1 986); Oe str ic k v . S tat e , 939 S.W .2d 232, 237 (Tex. App.—Austin 1997, pet. ref’d). Consider ing c ounsel’s pe rf or manc e a s a

wh ole , h e r f

a ilure to o bje c t to thi s one a lle g e d miss ta te me nt by the pr os e c uto r d id not rende r her

overa ll repre sentation of appe llant ineffe ctive. Finally , appellant ur g es t hat hi s counsel was ineffe ctive bec ause she did not perfe ct
e rr or re g ard ingthe State ’s fa ilure to a dv ise him of his ri g ht t o cont act th e Me xica n c on su la te following his arre st. Se e Ib arra v. Stat e , 1 1 S. W.3 d 1 89 , 1 97 (T e x. Cr im. Ap p. 19 99 ). Th is13

contention re sts on two factua l assumptions: (1) that appellant is a citizen of Mexi co, and ( 2) that
a pp e lla nt w a s n ot a dv ise d o f h is r ig ht t o n oti fy the Me xica

n c on su la te fo llo wi nghis arr e st. Th e Sta te argues that neither

of these f acts is established by

the re cord. We be lieve that the r ecor d substantiates appe llant’s status as a for eig n national, if not his claim to be a c itiz en of Me x ico. Appellant’ s mother, who testifi ed at t h e punishment stag e, ref err ed to appe llant as an “ immigra nt.” During h is own punishment testim ony , appellant
a c kn ow le dg e d in

re sp on se to a que sti on fr om the pr os e c uto r t hat he wa s “ su

bje c t to de po rt a tio n if [he is] rele ased f

rom jail.” Ther e is, howeve r, no evide nce that appellant was not told of his rig ht to seek a ssistance fr om his consulate following his arr est. Counsel cannot be ine ffe ctive for failing to perfe ct a none x istent error . Moreove r, eve n if a viol ation of t he Vienna C onvention is assumed, app el l an t d o es not develop a ny argument as to how the outcome of his trial would have been differ ent had his lawy er obje cted to the violation. Se e Car de na s v . S

tat e , 30 S.W .3d 384, 391 (Tex. Crim. App. 2000).

On this recor d, appellant ha s not met his burde n of per suasion reg ardingthe alleg ed ineffe ctiveness of

his trial counsel. Appe llant’s contention that he wa s denied e ffe ctive assistanc e of counse l at trial is overrule d.

The judg ment of convic tion is affirmed.

__________

_ _ _ _ _ _ _ __________________________ J an P. Patterson, J ustice Be fore J ustices Patterson, Waldrop and H enson Affir med Filed: De cembe r 31, 2008 Do No t Pu

bli sh