Affirmed and Opinion filed January 17, 2006
In The
Fourteenth Court of Appeals
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NO. 14-04-01141-CR
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ADRIAN MEDINA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Cause No. 962,721
O P I N I O N
Appellant Adrian Medina appeals after a jury found him guilty of murder and assessed punishment at fifty-five years= incarceration. In four points of error, appellant argues that (1) the prosecutor=s material misstatement of the law was manifestly improper; (2) the prosecutor=s argument during the punishment phase was inflammatory and prejudicial; (3) the trial court erroneously denied defense counsel=s hearsay objection to a statement made by a co-defendant; and (4) appellant=s trial counsel was ineffective in that he failed to object to the admission of evidence of extraneous drug offenses during the guilt/innocence phase.
Background
In the early morning hours of April 16, 2003, decedent Gary Pruett and his friend James Dunning bought crack cocaine from appellant and Josue Vazquez. However, Gary thought that the Arock@ was too small, and an argument ensued. The confrontation ended when Vazquez put a gun to Gary=s head, and Dunning sped away. Either Vazquez or appellant fired shots at the car as it left the scene.
Dunning and Gary drove to Dunning=s trailer. Later, Vazquez and appellant also arrived at Dunning=s trailer, and the earlier argument recommenced. Gary=s wife Michelle testified that she telephoned Dunning=s trailer around 6:00 a.m. when she realized that her husband was not home. While on the phone with Gary, Michelle heard him say to a third party: ASo what are you going to do, shoot me now?@ Michelle also recognized appellant=s voice in the background and heard him reply: ANo, we just want to talk.@ Suddenly the phone went dead; when Michelle called back, Dunning answered and informed her that appellant and Vazquez had shot Gary. According to Dunning, Vazquez shot Gary six to eight times.
Dunning also testified that he eventually hid inside the trailer, and that after he retreated, he heard several more shots fired. At the scene, police found shell casings of two different calibers, indicating that Gary was shot with two different weapons. After the shooting, Vazquez allegedly told a third party that he and appellant had shot Gary, and appellant stood silent.
Misstatement of the Law in Jury Argument
In his first point of error, appellant argues that the prosecutor=s misstatement of the law was manifestly improper because it invited jurors to convict appellant as a party simply because he was present at the scene. During closing argument in the guilt/innocence phase, the prosecutor stated: A[The other prosecutor] discussed with you in voir dire about what it takes to be a party to an offense or an accomplice. If you aid, or you encourage, or if you had the opportunity to prevent the crime and you fail to do so, then you=re a party to the offense.@ Defense counsel objected that the prosecutor had misstated the law, specifically the implication that Aif you don=t act to prevent the offense, that you=re guilty as a party.@ The judge sustained the objection and sua sponte instructed the jury to disregard the prosecutor=s last statement. Defense counsel took no further action regarding the prosecutor=s first statement.
Speaking at the same time as the judge was instructing the jury, the prosecutor continued his argument:
Bacting with intent to prevent the offense and you fail to do so at that time, you=re a party. . . . When you=re deliberating, and there is [sic] 12 of you here, six of you can believe that he was a principle [sic], six of you could believe beyond a reasonable doubt that he is a party or an accomplice or however it breaks down when you=re in the jury deliberation room. It makes no difference.
All that matters is that you believe beyond a reasonable doubt that this defendant Adrian Medina was either the principle [sic] shooter in this offense or he was a party to this offense along with Josue Vazquez.
Defense counsel made no objection to the prosecutor=s second statement.
We agree with appellant that in certain instances, a prosecutor=s misstatement of the law can be manifestly unjust. However, in appellant=s case, we need not determine whether the prosecutor=s statements were manifestly improper because appellant has failed to preserve the issue on appeal.
A defendant=s failure to object to a jury argument or a defendant=s failure to pursue to an adverse ruling his objection to a jury argument forfeits his right to complain about the argument on appeal. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); Campos v. State, 946 S.W.2d 414, 416 (Tex. App.CHouston [14th Dist.] 1997, no pet.). Here, defense counsel failed to move for a mistrial after the judge sustained his objection to the prosecutor=s initial misstatement of the law. See Koller v. State, 518 S.W.2d 373, 375-76 n.2 (Tex. Crim. App. 1975) (commenting that proper method of pursuing to an adverse ruling an objection to improper jury argument is to (1) object; (2) request an instruction to disregard, and (3) move for a mistrial). Appellant received the relief he requested concerning the prosecutor=s first statement. Defense counsel raised no objection to the prosecutor=s second statement. Accordingly, because appellant has not preserved the issue for appeal, we overrule his first point of error.
Inflammatory Jury Argument
Appellant contends that the following portion of the prosecutor=s closing argument at the punishment phase was inflammatory, prejudicial, and manifestly improper so as to require reversal:
What I=d really like to ask you to do, you don=t have the power to do it, is not to give him a sentence of any number of years. What I=d like to be able to ask you to do is just to bring Gary Pruett back to life just for five minutes just so Michelle has a chance and the kids to say good-bye. Just so his brother can talk to him one more time and say that he tried his best to help him out. But you can=t do that.
However, because defense counsel failed to object, the issue is not preserved for appellate review.[1] Cockrell, 933 S.W.2d at 89; Campos, 946 S.W.2d at 416. We overrule appellant=s second point of error.
Hearsay Statement
In his third point of error, appellant argues that the trial court erred by overruling defense counsel=s hearsay objections to certain testimony by Louis Medina, appellant=s brother. At trial, Louis testified that he, appellant, and Vazquez met in a room together after the shooting. Defense counsel objected on hearsay grounds when the prosecutor asked whether Vazquez had told Louis that he and appellant both had killed Gary Pruett. After the court overruled the objection, Louis responded: ANo, sir, I don=t remember talking to [Vazquez].@
We review a trial court=s ruling on the admissibility of evidence under an abuse of discretion standard. Oveal v. State, 164 S.W.3d 735, 742 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). Texas Rule of Evidence 801(d) defines hearsay as Aa statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.@ Tex. R. Evid. 801(d). A statement is (1) an oral or written verbal expression or (2) nonverbal conduct of a person, if it is intended by a person as a substitute for verbal expression. Tex. R. Evid. 801(a). Because Louis denied that Vazquez made a statement about the murder, his answer to the prosecutor=s question did not qualify as a statement for hearsay purposes. Because the objected-to testimony was not hearsay, the trial court did not abuse its discretion by overruling the objection. Accordingly, we overrule appellant=s third point of error.
Ineffective Assistance of Counsel
In his fourth point of error, appellant argues that defense counsel was ineffective in that he failed to object to the admission of extraneous drug offenses during the guilt/innocence phase. Specifically, appellant alleges that defense counsel should have objected when the prosecutor asked Gary Pruett=s wife Michelle if she had Aseen Gary purchase drugs from Josue Vazquez and Adrian Medina,@ to which Michelle responded affirmatively. According to appellant, defense counsel also should have objected when the prosecutor asked: AFrom both of them?@, to which Michelle also responded affirmatively.
To prove ineffective assistance of counsel, appellant must demonstrate that his trial counsel=s performance was deficient because it fell below an objective standard of reasonableness, and that there was a reasonable probability that, but for counsel=s errors, the result of the proceeding would have differed. Strickland v. Washington, 466 U.S. 668, 689 (1984); Rodriguez v. State, 899 S.W.2d 658, 664 (Tex. Crim. App. 1995). Whether this standard has been met is to be judged by the totality of the representation rather than by isolated acts or omissions of counsel, and the test is applied at the time of trial. Rodriguez, 899 S.W.2d at 665. Appellant must prove this ineffectiveness by a preponderance of the evidence. Id. There is a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance, and we will sustain allegations of ineffectiveness only if they are firmly founded in the record. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App. 1999); Rodriguez, 899 S.W.2d at 665.
Appellant did not file a motion for new trial. Without evidence of trial counsel=s strategy, we cannot say that defense counsel=s failure to object fell below an objective standard of reasonableness. Evaluating counsel=s choices made during trial would require us to second-guess his strategy through hindsight, an exercise which cannot support a finding of ineffective assistance. See Longoria v. State, 148 S.W.3d 657, 659 (Tex. App.CHouston [14th Dist.] 2004, pet ref=d). Accordingly, we overrule appellant=s final point of error and affirm his conviction.
/s/ Adele Hedges
Chief Justice
Judgment rendered and Opinion filed January 17, 2006.
Panel consists of Chief Justice Hedges and Justices Yates and Anderson. (Yates, J. concurring in results only)
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Appellant relies on Curtis v. State, in which the Court of Criminal Appeals noted that Afailure to object timely does not waive an error created by an argument of the prosecutor which is >so prejudicial that no instruction could cure the harm.=@ 640 S.W.2d 615, 619 n.4 (Tex. Crim. App. 1982). However, in Cockrell, the Court of Criminal Appeals Aexpressly overruled@ any prior cases holding that a defendant need not object when an erroneous jury argument could not have been cured by an instruction to disregard. 933 S.W.2d at 89.