Lovell, Mark Adam v. State

• Court: Court of Appeals of Texas
• Decided: February 26, 2004
• Docket: 08-02-00112-CR
• Status: Published

Opinion

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

MARK ADAM LOVELL,                                    )

                                                                              )               No.  08-02-00112-CR

Appellant,                          )

                                                                              )                    Appeal from the

v.                                                                           )

                                                                              )                142nd District Court

THE STATE OF TEXAS,                                     )

                                                                              )           of Midland County, Texas

Appellee.                           )

                                                                              )                   (TC# CR-26609)

                                                                              )

O P I N I O N

Appellant Mark Adam Lovell was indicted on two counts of aggravated assault, enhanced by two prior felony convictions.  The jury found Appellant guilty of aggravated assault as charged in Count I of the indictment and guilty of the lesser-included offense of assault as to Count II.  See Tex.Pen.Code Ann. '' 22.01(a), 22.02(a)(2)(Vernon Supp. 2004).  Based on the jury=s verdict, the trial court made an affirmative deadly weapon finding as to the aggravated assault offense, found the enhancement paragraphs to be true, and sentenced Appellant to 35 years= imprisonment at the Institutional Division of the Texas Department of Criminal Justice for the offense of aggravated assault with a deadly weapon.  The trial court sentenced Appellant to one year in the Midland County Jail for the lesser included offense of assault in Count II.  On appeal, Appellant raises eight issues for review in which he challenges the sufficiency of the evidence to sustain his conviction for aggravated assault, asserts ineffective assistance of counsel claims, a double jeopardy claim, and contends the trial court erred in admitting evidence of his purported gang involvement.^[1]  We affirm.

FACTUAL SUMMARY

On the night of January 18, 2001, the victim, Juan Rodriguez, was visiting his girlfriend Jessica Vasquez, at her apartment in Midland, Texas.  He and Ms. Vasquez were sitting at the dining room table and Ms. Vasquez=s roommate Ms. Charisa Campbell was in the kitchen when there were two knocks on the door.  Appellant, Ms. Vasquez=s ex-boyfriend unexpectedly walked into the apartment.  Appellant was very drunk and was carrying a bottle of liquor.  He then took off his shirt and was verbally abusive to Ms. Vasquez and Mr. Rodriguez.

After a time, three more people entered the apartment, Russell Stuteville, Larry Wren, and Teresa Yarbrough, Appellant=s wife.  Appellant and his friends started giving each other hugs and Appellant told Mr. Stuteville Athis guy over here wants to box,@ referring to Mr. Rodriguez.  Appellant then starting naming ranks, calling one of the guys his sergeant at arms or soldier and the other his major in the AAC@ or Aryan Circle.  Appellant and friends taunted Mr. Rodriguez to go outside, saying Awe can do this one-on-one and nobody would jump in, it would just be fun, we just come here to party, let=s drink, let=s drink.@  Mr. Rodriguez said no and told them they needed to leave.

Appellant, Wren, and Stuteville began punching and kicking Mr. Rodriguez.  Ms. Vasquez and Ms. Campbell both testified that Mr. Stuteville hit Mr. Rodriguez on the head with a VCR.  He was also struck with a cordless phone.  The melee continued until Mr. Rodriguez hit Appellant in the mouth and Appellant and the others left the apartment and walked away.

After Appellant and the others left, the police and an ambulance arrived.  Mr. Rodriguez=s injuries included a gash over his left eye that required five stitches, bruising on his left cheek and ear, a gash on his head, and a gash on the bridge of his nose that required three stitches.  Mr. Rodriguez also had numerous lumps on his head.  He testified that during the attack, he was scared and feared for his life.

Officer Ray Leible of the Midland Police Department was dispatched to the apartment to investigate the incident.  Officer Leible testified that hitting and kicking somebody who was down could cause serious bodily injury or death.  According to Officer Leible, if somebody used a VCR to hit someone over the head, that type of force was capable of causing serious bodily injury or death.  In his opinion, Officer Leible considered a cut above the eye requiring five stitches and a cut on the bridge of the nose requiring three stitches bodily injury, but not serious bodily injury.  Upon examining a photograph of a laceration on Mr. Rodriguez=s head, Officer Leible stated that the injury was consistent with something with an edge striking his head.

Defense witness Teresa Yarbrough, Appellant=s wife, testified that on January 18, 2001, she and Appellant had an argument at the 7-11 and afterwards he drove off and went over to Ms. Campbell=s apartment.  Russell Stuteville and Larry Wren came by and they all went to Ms. Campbell=s apartment.  Ms. Yarbrough knocked on the door and Ms. Campbell opened the door and let them in.  Ms. Yarbrough saw Appellant and Rodriguez standing there talking and laughing.  Ms. Vasquez told her that Appellant was there to be with Ms. Campbell.  At that point, everyone started arguing and Appellant was trying to calm everybody down.  Mr. Stuteville then reached around and hit Mr. Rodriguez.  Ms. Yarbrough recalled that Appellant ran over and tried to separate them.  Ms. Yarbrough claimed that the other men were swinging at each other and Appellant was simply on the bottom of the pile and she did not recall seeing Appellant kick anyone.  Then, someone threw a whisky bottle and after that, Appellant got up and left.  She testified that it was Mr. Stuteville who hit Mr. Rodriguez on the head with a VCR, breaking the VCR.  According to Ms. Yarbrough, Appellant was already gone when Mr. Rodriguez was hit with the VCR.  Ms. Yarbrough testified that there was no plan to go there and beat up Ms. Vasquez and Mr. Rodriguez, that she did not talk to Appellant about going to the apartment, and Appellant did not know Mr. Stuteville and Mr. Wren were coming over.

Sufficiency of the Evidence

In Issues One through Three, Appellant challenges the legal and factual sufficiency to sustain his conviction for aggravated assault with a deadly weapon.  Specifically, Appellant attacks the sufficiency of the evidence to show he acted as a party and that the VCR was a deadly weapon. 

Standards of Review

In reviewing the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App. 2000).  We measure the legal sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge for the case.  Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997).  This hypothetical charge would set out the law, be authorized by the indictment, not unnecessarily increase the State=s burden of proof or unnecessarily restrict the State=s theories of liability, and adequately describe the particular offense for which the defendant was tried.  Id.  We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact.  See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991).  Rather, our duty is to determine whether if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict.  See Adelman, 828 S.W.2d at 421-22.  In so doing, any inconsistencies in the evidence are resolved in favor of the verdict.  Matson, 819 S.W.2d at 843.

In reviewing the factual sufficiency of the evidence, we view all the evidence in a neutral light, both for and against the verdict, to determine whether it demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.  Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996).  We review the evidence supporting a fact in dispute and compare it to evidence tending to disprove that fact.  Johnson, 23 S.W.3d at 6-7; Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 832, 118 S.Ct. 100, 139 L.Ed.2d 54 (1997).  Although we are authorized to disagree with the jury=s determination, we must give due deference to the jury=s assessment of the weight and credibility of the evidence to avoid substituting our judgment for that of the fact finder.  Johnson, 23 S.W.3d at 8-9; Jones, 944 S.W.2d at 648.  We will set aside a verdict only where the evidence supporting guilt is so obviously weak or the contrary evidence so overwhelmingly outweighs the support evidence as to render the conviction clearly wrong and manifestly unjust.  Ortiz v. State, 93 S.W.3d 79, 87 (Tex.Crim.App. 2002), cert. denied, 123 S.Ct. 1901, 155 L.Ed.2d 824 (2003).

Aggravated Assault

A person commits the offense of assault if the person intentionally, knowingly, or recklessly causes bodily injury to another.  See Tex.Pen.Code Ann. ' 22.01(a)(1).  Aggravated assault occurs if a person commits assault as defined in Section 22.01 and the person uses or exhibits a deadly weapon during the commission of the assault.  See Tex.Pen.Code Ann. ' 22.02(a)(2).  A deadly weapon is defined as anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.  See Tex.Pen.Code Ann. ' 1.07(a)(17)(B)(Vernon Supp. 2004).

We turn first to Appellant=s contention concerning the use of the VCR as a deadly weapon in this case.  Appellant asserts that there is legally and factually insufficient evidence that Mr. Stuteville=s use of the VCR to hit Mr. Rodriguez on the head constituted use of a deadly weapon.  Appellant argues that there was no evidence of how hard Mr. Rodriguez was hit with the VCR, no testimony from a medical professional, and Mr. Rodriguez suffered only a minor cut, which did not require any stitches.  An object is a deadly weapon when it is actually used in a manner which causes, or has the potential to cause death or serious bodily injury.  See Tex.Pen.Code Ann. ' 1.07(a)(17)(B); Hill v. State, 913 S.W.2d 581, 591 (Tex.Crim.App. 1996) (Baird, J., concurring and dissenting); Powell v. State, 939 S.W.2d 713, 717 (Tex.App.--El Paso 1997, no pet.).  Serious bodily injury is defined as Abodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.@  Tex.Pen.Code Ann. ' 1.07(a)(46).  In this case, the State was required to show beyond a reasonable doubt that the VCR, in the manner of its use, was capable of causing death or serious bodily injury.  Therefore, the State was not required to show Mr. Rodriguez actually suffered serious bodily injury, but rather, in the manner of its use, the VCR was capable of causing death or serious bodily injury to Mr. Rodriguez.  See McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000); Clark v. State, 886 S.W.2d 844, 845 (Tex.App.--Eastland 1994, no pet.). 

Here, witnesses testified that Mr. Stuteville hit Mr. Rodriguez on the head with a VCR, causing the VCR to break.  Officer Raymond Leible testified that using a VCR to hit someone over the head was the type of force capable of causing serious bodily injury or death.  After examining a photograph of the laceration on Mr. Rodriguez=s head, Officer Leible stated that the injury was consistent with being struck on the head by something with an edge.  Viewing the facts in a light most favorable to the verdict, we conclude that the evidence was legally sufficient to support the jury=s implicit finding that of the VCR in this case was a deadly weapon.  Further, after reviewing all the evidence, we conclude that the finding is also supported by factually sufficient evidence.

Within Appellant=s first three issues, he also contends there is insufficient evidence to support his conviction as a party to the offense of aggravated assault with a deadly weapon.  Under the law of parties, a person is criminally responsible for an offense committed by the conduct of another if, acting with an intent to promote or assist in the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.  See Tex.Pen.Code Ann. ' 7.02(a)(2).  To establish this theory of liability, the State must prove the illegal conduct of the primary actor and that the accused acted with the intent to promote or assist the commission of the offense.  Stroman v. State, 69 S.W.3d 325, 329 (Tex.App.--Texarkana 2002, pet. ref=d).  In evaluating whether a defendant is a party to an offense, the court may examine the events occurring before, during, or after the offense is committed and may rely on the defendant=s actions showing an understanding and common design to commit the offense.  See Marable v. State, 85 S.W.3d 287, 293 (Tex.Crim.App. 2002); Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App. 1996), cert. denied, 519 U.S. 1030, 117 S.Ct. 587, 136 L.Ed.2d 516 (1996).  Mere presence at the scene of a crime does not implicate an individual as a party.  However, participation in a criminal offense may be inferred from the circumstances.  Beardsley v. State, 738 S.W.2d 681, 684 (Tex.Crim.App. 1987).  In this case, Appellant was not indicted as a party to the offense of aggravated assault, however, the jury=s instructions and the application paragraph of the charge included the law of parties liability theory. 

With respect to the aggravated assault conviction, evidence at trial showed that when Mr. Stuteville and Mr. Wren arrived at the apartment, Appellant greeted them with hugs and told Mr. Stuteville that Mr. Rodriguez wanted to box.  Mr. Rodriguez told them to leave.  The altercation began when Appellant grabbed Mr. Rodriguez by the shoulder.  Appellant, Mr. Stuteville, and Mr. Wren hit and kicked Mr. Rodriguez all over his body.  During the fighting, Mr. Rodriguez heard Appellant say, Ayou=re going down.@  During the brawl, Appellant was choking Mr. Rodriguez and lifting him so that the others could kick him in the face.  Ms. Vasquez and Ms. Campbell observed Appellant choking Mr. Rodriguez while Mr. Stuteville hit Mr. Rodriguez on the head with a VCR, which broke.  The beating continued for about three more minutes before Mr. Rodriguez managed to break Appellant=s grip. 

From Appellant=s conduct and words during the beating, the jury could reasonably infer that Appellant acted as a party to the offense of aggravated assault with a deadly weapon as committed by Mr. Stuteville, the primary actor.  During the incident, Appellant encouraged the commission of the offense by his words and aided or attempted to aid Mr. Wren by choking Mr. Rodriguez, which rendered Mr. Rodriguez immobile during Mr. Stuteville=s attack with the VCR.  From evidence presented at trial, the jury could have inferred that the parties= agreement or common design to commit the offense was formed contemporaneously with the criminal act.  See Beier v. State, 687 S.W.2d 2, 3-4 (Tex.Crim.App. 1985).  Moreover, evidence in this case shows that Appellant continued to assault Mr. Rodriguez after Mr. Stuteville hit Mr. Rodriguez with the VCR, conduct which supports the jury=s conclusion that Appellant participated as a party to the offense.  Viewing the evidence in the light most favorable to the verdict, we conclude the evidence was legally sufficient to sustain Appellant=s conviction for aggravated assault with a deadly weapon as a party to the offense.

In his factually sufficiency challenge, Appellant directs our attention to evidence that shows he arrived alone and drunk, had started to leave when the codefendants showed up, and did not join the fight until he was shoved by Mr. Rodriguez.  We also observe that according to Ms. Yarbrough=s testimony, Appellant attempted to separate the fighting parties, became entangled in the fighting, and had already left before Mr. Stuteville hit Mr. Rodriguez with the VCR.  After reviewing all the evidence, however, we conclude that it was factually sufficient to sustain Appellant=s conviction as the evidence supporting guilt is not so obviously weak nor overwhelmingly outweighed by contrary evidence as to render the conviction clearly wrong and manifestly unjust.  See Ortiz, 93 S.W.3d at 87.  Issues One through Three are overruled.

Double Jeopardy

In Issue Five, Appellant argues that his convictions for two assaults against the same person in the same transaction clearly violates his guarantee against double jeopardy under the Fifth Amendment.  The double jeopardy clause of the Fifth Amendment to the United States Constitution provides that no person shall Abe subject for the same offense to be twice put in jeopardy of life or limb.@  See U.S. Const. amend. V.  This constitutional provision is applicable to the states through the Fourteenth Amendment.  See, e.g., Brown v. Ohio, 432 U.S. 161, 164, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977).  The Fifth Amendment protection against double jeopardy includes protection from multiple punishments for the same offense.  Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228 (1980); Cervantes v. State, 815 S.W.2d 569, 572 (Tex.Crim.App. 1991).

Appellant did not raise the issue of double jeopardy in the trial court.  See Tex.R.App.P. 33.1(a).  Appellant has the burden to preserve in some fashion, a double jeopardy objection at or before the time the charge is submitted to the jury.  Gonzalez v. State, 8 S.W.3d 640, 642 (Tex.Crim.App. 2000).  However, in limited circumstances, Appellant may raise a double jeopardy claim for the first time on appeal when:  (1) the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record; and (2) enforcement of the usual procedural default rules serve no legitimate state interests.  Id. at 643.  Both prongs must be satisfied to raise a double jeopardy claim for the first time on appeal.  Murray v. State, 24 S.W.3d 881, 888-89 (Tex.App.--Waco 2000, pet. ref=d).

In this case, Appellant was indicted with aggravated assault against Juan Rodriguez with a deadly weapon, to wit:  a VCR in Count I and with aggravated assault against Juan Rodriguez with a deadly weapon, to wit:  his hands and feet in Count II.  With respect to Count I, the jury was instructed to find Appellant guilty of the offense of aggravated assault if it believed from the evidence beyond a reasonable doubt that Appellant acted as a party to the offense.  The jury found Appellant guilty of Count I.  As to Count II, the jury found Appellant not guilty of aggravated assault as charged, but guilty of the lesser offense of assault.  Witness testimony at trial revealed that codefendant Mr. Stuteville was the principal actor in the commission of the offense of aggravated assault with a deadly weapon, the VCR, during the criminal episode.  Appellant=s conviction under Count I as a party was based on his participation in this distinct and separate offense.  Evidence in the record shows that Appellant=s conviction of assault as a lesser included offense of Count II was not based on the same conduct underlying his conviction for aggravated assault in Count I.  Therefore, a double jeopardy violation is not clearly apparent on the face of the record.  We find that Appellant has waived any double jeopardy error by failing to present a record on appeal showing on its face any multiple punishments violation.  See Gonzalez, 8 S.W.3d at 645.  Issue Five is overruled.

Ineffective Assistance of Counsel

In Issues Four and Six, Appellant contends he was denied effective assistance of counsel because his trial counsel failed to object to the variance between the indictment and the jury charge and failed to object to the violation of his right not to be convicted twice for the same crime.

Claims of ineffective assistance are reviewed under the two-pronged test set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 56-7 (Tex.Crim.App. 1986).  To prevail, the defendant must show that trial counsel=s performance was deficient, that is, counsel=s representation fell below an objective standard of reasonableness.  Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999); Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064.  The defendant must also show that counsel=s deficient performance prejudiced his defense.  Strickland, 466 U.S. at 687, 104 S.Ct. 2064; Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994).  This requires the defendant to show there is a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different.  Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Jackson, 877 S.W.2d  at 771.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.  Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Jackson, 877 S.W.2d at 771.  It is the defendant=s burden to prove ineffective assistance of counsel by a preponderance of the evidence.  Thompson, 9 S.W.3d at 813.

In reviewing a claim of ineffective assistance of counsel, we must indulge a strong presumption that counsel=s conduct falls within the wide range of reasonable professional assistance and Appellant must overcome the presumption that the challenged conduct might be considered sound trial strategy.  Thompson, 9 S.W.3d at 813.  Any allegation of ineffectiveness must be firmly founded and affirmatively demonstrated in the record to overcome this presumption.  Id.; see Jackson, 877 S.W.2d at 771.  In the majority of instances, this task is extremely difficult because Athe record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.@  Thompson, 9 S.W.3d at 813-14.  When faced with a silent record as to counsel=s strategy, we will not speculate as to the reasons for counsel=s actions.  See Jackson, 877 S.W.2d at 771.

In this case, Appellant did not file a motion for new trial to challenge the alleged ineffectiveness of his counsel.  The record before this Court does not contain trial counsel=s explanations of the reasons for the inaction alleged as errors, therefore it will be difficult for Appellant to rebut the strong presumption that trial counsel=s conduct falls within the wide range of reasonable professional assistance.  See Thompson, 9 S.W.3d. at 814.

Variance Between Indictment and Jury Charge

In its indictment for Count I, the State alleged that Appellant Adid then and there intentionally, knowingly and recklessly cause bodily injury to Juan Rodriguez by striking and hitting the said Juan Rodriguez with a VCR and did then and there use and exhibit a deadly weapon, to wit:  a VCR, during the commission of the said assault.@  In the application paragraph for Count I in the jury charge, the jury was instructed to find Appellant guilty if it found beyond a reasonable doubt that Appellant acted as a party in holding Juan Rodriguez while the other person or persons were Acausing bodily injury to the said Juan Rodriguez with a VCR or with hands or feet@ and it further found beyond a reasonable doubt Athat the said other person or persons did then and there exhibit or use and exhibit a deadly weapon, to wit:  a VCR or hands or feet during the commission of said offense.@  The State concedes that application paragraph was incorrect because Ahands and feet@ was not alleged as a deadly weapon in the indictment under Count I.^[2]  As the State appropriately observes, a jury charge must not enlarge the offense alleged and authorize the jury to convict the defendant on a basis not alleged in the indictment.  See Castillo v. State, 7 S.W.3d 253, 258 (Tex.App.--Austin 1999, pet. ref=d), citing, Fella v. State, 573 S.W.2d 548, 548 (Tex.Crim.App. 1978).

Assuming, without deciding, that trial counsel=s representation fell below an objective standard of reasonableness by failing to object to the variance in the jury charge, Appellant must still show that his counsel=s deficient performance prejudiced his defense.  See Strickland,  466 U.S. at 687, 104 S.Ct. 2064; Jackson, 877 S.W.2d at 771.  Under the second prong of Strickland, Appellant must show there is a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome, that but for counsel=s unprofessional errors, the result of the proceeding would have been different.  Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Jackson, 877 S.W.2d at 771. 

In his brief, Appellant contends that this error on the part of trial counsel clearly made the case for conviction clearly and significantly more persuasive.  At trial, Officer Leible testified that whether there were three people or one person hitting and kicking somebody who was down, that hitting and kicking could cause serious bodily injury or death.  The State prosecutor then asked, AAnd in these circumstances if I told you that there were just one person on one, the victim was down and somebody was kicking him when he was down, would that kicking and that use of force or the hitting with the hand use of force be capable of causing serious bodily injury or death?@  Officer Leible stated that it would depend on the part of the body that was being struck, but if the head, the throat, or other red target areas were struck, it can.  Officer Leible also testified that if somebody was down on the ground and three people were hitting and kicking them everywhere, that type of action is capable of causing serious bodily injury or death.  In its closing argument to the jury, the State argued:

Ladies and gentlemen, I don=t think there should be any doubt in your mind that this Defendant is guilty of aggravated assault with a deadly weapon, to wit:  a VCR, as a party to this offense, because he aided him by holding him [Mr. Rodriguez] down strangling him, and he also encouraged them by saying, AGet them, brother.  Get them, brother.@  Hands and feet obviously hadn=t done it, you got to do more.  It=s not unconceivable [sic] that you start picking up stuff, and here comes the VCR.  He aids them by encouraging them, and he aids them by holding him down.

I urge you to vote guilty on Count 1 as a party to the offense of aggravated assault with a deadly weapon, to wit: a VCR.

Count 2, aggravated assault with a deadly weapon, to wit: hands and feet.  When you have [a] man who=s balled up on the ground with three guys hitting him and kicking him anywhere they can, that=s not a misdemeanor assault.

There is little evidence in the record to support Appellant=s contention that the State obtained a conviction against Appellant as a party under Count I based on a finding of Ahands or feet@ as a deadly weapon, rather than a AVCR@ as a deadly weapon as alleged in the indictment.  Further, the State never argued that Appellant was guilty under Count I for aggravated assault with a deadly weapon, to wit:  hands or feet.  We also observe that the jury returned a general verdict, finding Appellant guilty of the offense of Aggravated Assault Aas charged in Count I of the indictment.@  Appellant has failed to show a reasonable probability that the result of this proceeding would have been different if trial counsel had objected to the variance in the jury charge.  Issue Four is overruled.

Appellant also argues that his trial counsel was ineffective because counsel failed to object to the violation of his right not to be convicted twice for the same crime.  Specifically, Appellant contends his counsel was deficient for failing to raise a double jeopardy bar to prosecution for the two aggravated assault charges arising out of the same criminal episode.  As discussed above, Appellant was indicted with two aggravated assault charges, differing only in the deadly weapon allegedly used or exhibited during the commission of each offense.  The jury found Appellant guilty of aggravated assault with a deadly weapon under Count I and not guilty of aggravated assault with a deadly weapon, but guilty of the lesser-included offense of assault as to Count II.  Appellant fails to demonstrate that a double jeopardy objection would have prevailed in this case.  Although one victim was assaulted, there was sufficient evidence to show that Appellant committed two separate and distinct assaults, one as a party to the aggravated assault against Mr. Rodriguez with the VCR, and the second by committing the offense of assault by his own conduct as a principal actor.  The jury=s general verdict for each count could have been based on separate and distinguishable assaults.  Therefore, Appellant was not subjected to multiple punishments for the same offense, but rather he was given two distinct punishments for two separate criminal acts against the same victim.  From the record before us, we conclude that counsel was not deficient for failing to raise a double jeopardy objection.  Issue Six is overruled.

Issues Raised in Supplemental Briefing

Appellant filed a motion in this cause, in which he requested leave of court to file a supplemental brief containing additional points of error.  The Court granted Appellant=s request to file a supplemental briefing.  Appellant raises two additional issues for our review. 

Admission of Evidence on Purported Gang Affiliation

In Issue One of his supplemental brief, Appellant argues the trial court erred in admitting testimony related to his purported gang involvement because this evidence was irrelevant and highly prejudicial.  In response, the State contends Appellant failed to preserve his objection to admission of this evidence. 

During the testimony of the State=s first witness, Juan Rodriguez, the State prosecutor approached the bench and informed the trial court that Mr. Rodriguez intended to testify that

when Appellant=s codefendants entered the apartment Appellant said, AI=m AC, Aryan Circle@ and greeted his friends saying, AHey, this is my brother,@ and started naming ranks in the Aryan Circle.  Appellant objected to this expected testimony related to gang membership, arguing it was highly prejudicial and having nothing to do with whether he was a party to a crime or not.  The following exchange then occurred concerning the trial court=s ruling on the objection:

The Court:                    [Defense counsel], the Court=s ruling is that the jury=s entitled to hear and the State is entitled to present the evidence of what the parties said, including the statements, whether they are true or not, regarding the entire transaction.

[Defense counsel]:        All right, sir.

[State prosecutor]:        Can I so inform the witness, because I=ve instructed him to stay away from that?

[Defense counsel]:        You=re not going -- this does not include letting them go into being a prison gang or anything of that nature?

The Court:                    It is not.  It is only as to what he said there and what he did, not the status he held.  You follow what I=m saying?

[State prosecutor]:        Not like his rank?

The Court:                    Yeah, in other words, if -- I am not permitting the State to go into whether or not he is a gang member, only to what he said in this transaction.  The jury=s entitled to hear that.

[State prosecutor]:        Right.  So to prevent another bench conference, the third witness [Charisa Campbell] knows what Aryan Circle is, and when he started saying >I=m AC,= and it was scaring her, because she understood what that meant, I think her state of mind in terms of what that meant to her --

[Defense counsel]:        She=s not a victim in this case, Your Honor.  She=s not a party to this lawsuit.

[State prosecutor]:        It was her apartment that got trashed all over the place.

The Court:                    [Defense counsel] is correct, she=s not a victim and state of mind of someone who is not a victim, that=s a stretch to show how that would be relevant, what she=s thinking.

[State prosecutor]:        Okay

[Defense counsel]:        Note my exception.  You=re overruling my Motion in Limine^[3] to a certain extent.  We object.  Can I have a continuing objection?

The Court:                    Yes.

[Defense counsel]:        Thank you.

Juan Rodriguez testified that when Mr. Stuteville, Mr. Wren, and Ms. Yarbrough entered, Aall of them together,@ including Appellant, were talking and Amentioned about an AC, an Aryan when they=re about right here walking, that >AC=s in the house,= or something like that.@  The State=s second witness, Jessica Vasquez, testified that when they entered the apartment, they met in the living room and started talking about Athis is my brother, this is my brother,@ and then they all moved into the kitchen where Appellant started introducing Mr. Wren as his major and Mr. Stuteville Aas something else in the Aryan Circle.@  Appellant did not raise an objection based on the mention of purported gang affiliation.  The State=s third witness, Charisa Campbell, testified that when the others showed up at the apartment, they met in the middle of the room and started hugging each other and saying Amy brother.@  Ms. Campbell recalled that once everyone was in the kitchen, they started talking, saying, AWe=re Aryan Circle@ and their name and ranks.  Again, Appellant did not raise an objection to the mention of purported gang affiliation. 

We first consider whether Appellant=s continuing or running objection preserved error on admission of the above testimony.  In order to preserve a complaint for appellate review, the record must show that the complaining party presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling sought from the trial court unless the specific grounds were apparent from the context, and obtained an adverse ruling.  See Tex.R.App.P. 33.1(a)(1).  The Arunning objection@ is an exception to the rule that a party must continue to object and obtain a ruling for each instance of inadmissible evidence.  See Ethington v. State, 819 S.W.2d 854, 858-59 (Tex.Crim.App. 1991).  A request for a running objection is considered timely and preserves error so long as it does not encompass too broad a subject matter over too broad a time or over different witnesses.  Sattiewhite v. State, 786 S.W.2d 271, 283 n.4 (Tex.Crim.App. 1989), cert. denied, 498 U.S. 881, 111 S.Ct. 226, 112 L.Ed.2d 181 (1990); Goodman v. State, 701 S.W.2d 850, 863 (Tex.Crim.App. 1985), overruled in part on other grounds by Hernandez v. State, 757 S.W.2d 744, 751-52 n.15 (Tex.Crim.App. 1988). 

In this case, Appellant requested a continuing objection to the mention of gang affiliation during Mr. Rodriguez=s testimony without requesting that his objection extend to all witnesses testifying on the same subject matter.  See Sattiewhite, 786 S.W.2d at 283 n.4 (running objections may preserve error, but must be exercised with caution).  Appellant did not renew his continuing objection with respect to State witnesses Jessica Vasquez and Charisa Campbell.  The record does not reflect that the trial court understood or expressly permitted the continuing objection to apply to all witness testimony about Appellant=s statements regarding gang affiliation.  Therefore, the court=s ruling during Mr. Rodriguez=s testimony did not apply to the admission of similar testimony introduced by other witnesses.  Appellant=s failure to object to testimony by Ms. Vasquez and Ms. Campbell regarding the same evidence waived his objection to Mr. Rodriguez=s testimony.  See Rogers v. State, 853 S.W.2d 29, 35 (Tex.Crim.App. 1993)(error waived as to improperly admitted evidence if same evidence is brought in later without objection); Goodman, 701 S.W.2d at 863.  Appellant has failed to preserve the alleged error.  Issue One in Appellant=s supplemental brief is overruled.

Ineffective Assistance of Counsel for Failure to Request Limiting Instructions

In Issue Two of his supplemental brief, Appellant contends he was denied effective assistance of trial counsel because his counsel failed to request limiting instructions in the jury charge regarding testimony that Appellant was a member of a gang and further limiting instructions regarding Appellant=s having been in the Apen.@ 

In reviewing Appellant=s ineffective assistance claim, we apply the standard of review set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) as discussed above in this opinion.  Appellant argues that it is apparent from trial counsel=s objections to admission of testimony about gang membership and testimony regarding him having been in the penitentiary that his counsel was aware of the extremely prejudicial effect this testimony would have on the jury, yet he failed to request a limiting instruction on these matters.  However, we find there is nothing firmly in the record to determine the trial counsel=s reasoning for not requesting certain limiting instructions nor is there any indication as to what limiting instructions would have been appropriate for submission to the jury.  Any allegation of ineffectiveness must be firmly founded and affirmatively demonstrated in the record to overcome the strong presumption that counsel=s conduct falls within the wide range of reasonable professional assistance.  Thompson, 9 S.W.3d at 813; see Jackson, 877 S.W.2d at 771.  We do not speculate as to the reasons for counsel=s actions where the record is silent as to counsel=s trial strategy.  See Jackson, 877 S.W.2d at 771.  We conclude that Appellant has failed to show that trial counsel=s performance was deficient such that it fell below an objective standard of reasonableness.  See Thompson, 9 S.W.3d at 812.  Issue Two of Appellant=s supplemental brief is overruled.

Having overruled all of Appellant=s issues for review, we affirm the trial court=s judgment.

February 26, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

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^[1] Appellant asserts six issues for review in his appellate brief and raises two additional issues in his supplemental appellate brief. 

^[2] We observe that during the charge conference, the State objected to this language in Count I.  The trial court agreed, stating that it would Acorrect that to you before the Charge is read to the jury and let you confirm it.@  The court=s charge was read to the jury, but the record does not show that any corrections were made.

^[3] Appellant had filed a motion in limine, requesting that the trial court order the State not to comment, either directly or indirectly, upon his alleged gang affiliation without first approaching the bench.