Opinion issued June 2 1 , 2016

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 15
- 00167
- CR

——————————— JOSHUA JACOB PATTERS ON , Appella nt

V. THE STATE OF TEXAS , Appell e e
On Appeal from the 240th District Court Fort Bend County, Texas Trial Court Ca se No. 11
- DCR
- 058778

O P I N I O N 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:2

(1) under the doctrine of in pari materia , he should have been indicted for engaging in organized criminal activity rather than murder ; (2) the t rial court erroneously admitted evidence of a n 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

. Patterso n filed a pre - trial motion to suppress any statement he had made t o 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 no t 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 a n earlier gang - related shooting.3

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 Ed wards and Antonnyer Morriso n, 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 m arijuana

. 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 wh o was assigned to investigate gang

- related crimes and who investigated Sullivan’s murder. T ullos testified about 100 Click and F.A.B. 1 and about the vi olent rivalry between these two
gangs. In particular, he stated that a F.A.B. member a lleged ly 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 Morriso n

— were members of 100 Click or an affiliated gan g known as the “Young Ones. ” Tullos d iscussed the criteria that the S tate 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 “Bre ad” being a reference to money.4

on social media postings in which Patterson associated with k nown gang members and displayed a hand sign as sociated 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 Pa tterson met the criteria , and that he had n ot encountered Patterson engaging in any gang

related activity before Sullivan’s mur der

. 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 tha t 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 o fficers identified Edwards as one of the robbers based on fingerprint evidence

. Tullos identified Patterson as the other robber based on still photographs taken from video5

surveillance footage. The State introduced these photos into evidence without obje ction

. 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 asso ciated with 100 Click had been shot a couple of weeks before Sullivan’s murder.
Ramirez also testified that he conducted a videotaped interview of Pat terson , which the trial court admitted over a hearsay objection

. During the interview, Patterson initial ly 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 insis ted 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 testimon y. Ramirez testified that Edwards was the first person to implicate Patterson and conceded on cross

- examination that Edwards told multiple,6

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.
T he State also called as witnesses two young women who w ere 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 thes e three men left the location at which they were hanging out on the night of Su llivan’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 Edwa rds 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 who m he shot

. Patterson did not ask who had been shot; he merely asked whether Edwards and Morr ison had got ten 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 the7

gun under the hood of the car an d 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 anot her man named Tracy arrived, she left with him. Later , Hall, Patterson, Morrison, and Edwards arrived at Tracy’ s h ouse 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 ho mes. 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 P atterson with Sullivan’s mu rder other than tha t “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.8 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 activ ity

. 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 p rosecuted under a narrower, more specif ic 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 whi ch 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 statu t es address the same subject matter for purposes of the doctrine , we consider whether the y (1) are contained in the same legislative9

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, the y do not add ress 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 doe s not mean that they irreconcil ably conflict with one another. Id. Whether two statutes are in par i 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; or10

(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.
T EX
. P ENAL C ODE § 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.” T EX
. P ENAL C ODE § 71.02(a)(1). Sections 19.02(b) and 71.02(a)(1) of the Penal Code do not ad dress 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, t hese 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 pr ofits of a combination or as a member of a criminal street gang.” T EX
. P ENAL C ODE § 71.02(a). Murder is one of the predicate crimes that will support an organized criminal activity conviction. Id. § 71.02(a)(1). But murder11

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

statute

. Compare id. § 19.02, with id. § 71.02(a).
T he 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 murde r 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).
F inally , the offenses were not written to achieve the same purpose or objective. The m

urder 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 s ervice 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 punishi ng it more severely based on “the legislature’s recognition that organized criminal activity is more dangerous to the welfare of the
state than un organized activity ”). Having considered the four relevant factors, we12

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 T EX
. P ENAL C ODE § 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 Sec tion 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 o pened the door to evidence about Patterson’s extraneous aggravated robbery with Edwards

. He also a rgues that his counsel did not open the door to this evidence in her opening statement or cross

- examination of witnesses.13

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
T o preserve error, a party must object with specificity in the trial court and the error the party asserts on appeal must conform to the object ion made at trial. Clark
v. State , 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). The requirement of a proper objec tion 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 [1s t Dist.] 2004, pet. ref’d). Therefore , a party m a y not assert prosecut orial 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. T EX
. R. E VID
. 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 mis take 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.

—14

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 discret ion. 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. T EX
. R. E VID
. 403; Johnston v. State , 145 S.W.3d 215, 219

– 20 (Tex. Cr im. 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 con sequence m ore 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 by15

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 a rgued 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 prosecutori al 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; Bl ackwell , 193 S.W.3d at 11

– 13. Instead, the salient question is whether the distric t court abused its discretion in deciding that Patterson’s defensive theory made evidence of his partic ipation in a gang - related robbery relevant. The principal dispute s at trial concerned Patterson’s alleged membership in 100 Click and his role in the shooting of Sullivan. T he defense maintained that16

Patterson was not an active member of the gang and had no idea his companions , who were gang members , intended to harm Su llivan

. In her opening statement,
defense counsel ack nowledged that Patterson drove the car that transported the shooter or shooters to and from the murder scene, but a rgued that Patterson did so believing they were merely going there to buy marijuana

. D efense 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 membe r 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 wro ng 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. P roof of the extraneous robbery also rebutted the defense’s claim that
Patterson had not been i nvolved 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

– 13.17

By overruling Patterson’s Rule 403 objection, the trial court implicitly
conclud ed 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 a n extraneous robbery with a known gang member was some proof that Patterson was a member of 100 Click and inv olved in its criminal activities , and this in turn made it more probable that he ha d a motive to p articipate in Sullivan’s murder. See Smith v. State , 355 S.W.3d 138, 154 (Tex. App.

— Houston [1st Dist.] 2011, pet. ref’d ) (gang member ship admissible to show motive and intent or to refute defensive theories). Second, t he proof regarding the extraneous ro bbery 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, 12 0

– 2 1 (Tex. App.

— Houston [1st Dist.] 2012, pet. ref’d) (second factor entails consideration of “the ‘emotiona l 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 surve i llance footage at the location of th e robbery and Tullos’s brief testimony about the robbery.
Fourth , given the defense’s theory that Patterson was n ot an active member of 100 Click , the prosecution had significant n eed for contrary proof to rebut the18

defense’s theory that Patt erson 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 no t substantially outweighed by the danger of unfair prejudice

. See Santellan , 939 S.W.2d at 169; Hajjar , 176 S.W.3d at 5 61

. 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 enfor cement 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. T EX
. C ODE C RIM
. P ROC . art. 38.22, §§ 2(a)(5), 3(a)(2). Any resulting sta tement 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.19

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 Art icle 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 witho ut specifying any particular violation of the statute and declined to present his su ppression 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 Patterso n’s ninth issue.20

D . The r ecord 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 request ing 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 rig ht 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 thi s deficiency prejudiced his defense. Lopez v. State , 343 S.W.3d 137, 14221

(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 showin g by a preponderance of the evidence will defeat his ineffectiveness claims. Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). H is 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 p arte 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 outrage ous 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 claim s 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 presumpti on 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 tri al strategy22

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 p arte Jimenez , 364 S.W.3d at 887 (failure to move
for mistrial ba sed on admission of admissible evidence is not ineffective assistance)

. We overrule Patterson’s third issue.
b. R ecord is in sufficient to assess other ineffective assistance claims Patterson argues that his trial counsel should have objected or taken othe r measures to secure exclusion of his videotaped statement

. But Patterson did not
raise this issue in his m otion 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 o n the bases identified by Patterson was so outrageous that no competent23

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 , 1 44 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. T EX
. R. A PP
. P . 47.2(b).