Medellin, Albert Rodriguez

Opinion

PD-0484-15 PD-0484-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 6/15/2015 2:48:45 PM Accepted 6/19/2015 10:28:30 AM ABEL ACOSTA IN THE COURT OF CRIMINAL CLERK APPEALS OF TEXAS

NO. PD-0484-15 ALBERT RODRIGUEZ MEDELLIN, Petitioner

V.

THE STATE OF TEXAS, Respondent

ON PETITION FOR DISCRETIONARY REVIEW OF THE FOLLOWING:

IN THE COURT OF APPEALS FOR THE 13TH DISTRICT NO. 13-13-00190-CR ON DIRECT APPEAL FROM COMAL COUNTY, TEXAS

TRIAL COURT CASE NO. CR-2011-196 Honorable Carl E. Stewart, Chief Judge Presiding

Larry Warner, Counsel for Petitioner Alberto Rodriguez Medellin 3109 Banyan Circle Harlingen, Texas 78550 Phone: (956) 230-0361 Facsimile: 1-866-408-1968 June 19, 2015 office@larrywarner.com Texas Bar#20871500;USDC,SDTX 1230; Board Certified, Criminal Law, Texas Board of Legal Specialization(1983) Member of the Bar of the Supreme Court of the United States (1984)

Page 1 of 21 Pursuant to TEX.R.APP.P.68.4,Appellant provides the following identity of parties

and counsel:

Identity of parties and counsel

Alberto Rodriguez Medellin, Appellant

FOR THE STATE OF TEXAS at trial and on appeal and on petition for

discretionary review:

Ms. Jennifer C. Smith *** and ***

Ms. Laura B. Bates COMAL COUNTY DISTRICT ATTORNEY'S OFFICE 150 North Seguin, Suite 307 New Braunfels, Texas 78130 (830) 221-1300

FOR THE DEFENDANT ALBERT RODRIGUEZ MEDELLIN at trial: Thomas P. 'Tom' Clark ATTORNEY AT LAW 800 West San Antonio Street, Suite B New Braunfels, Texas 78130 (830) 624-0804

FOR THE DEFENDANT ALBERT RODRIGUEZ MEDELLIN On Appeal and on petition for discretionary review: Larry Warner, Counsel for Petitioner Alberto Rodriguez Medellin 3109 Banyan Circle Harlingen,Tx 78550 Phone: (956) 230-0361 Facsimile: 1-866-408-1968 office@larrywarner.com Texas Bar#20871500;USDC,SDTX 1230; Board Certified, Criminal Law, Texas Board of Legal Specialization(1983) Member of the Bar of the Supreme Court of the United States (1984)

Page 2 of 21 Pursuant to TEX.R.APP.P.68.4(a), Petitioner provides this Table of Contents with reference to the pages of the Petition, indicating the subject of each ground or question presented for review.

TABLE OF CONTENTS PAGE

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Statement re oral argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-6

Statement of the case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7

Statement of procedural history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-8

Grounds for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-9

1. The Court of Appeals has decided an important question of state or federal law in a way that conflicts with the applicable decisions of the Court of Criminal Appeals or the Supreme Court of the United States.

The question is: Does the Trial Court abuse its discretion in denying a change of venue when the evidence is otherwise in equipoise but the District Attorney herself announces publicly pretrial her personal opinion that the defendant is guilty? Does the district attorney’s publicized opinion fulfill the prejudice requirement of TEX.CODE CRIM.P.art.31.02(a)?

The decision of the Court of Criminal Appeals is Ransonnette v. State,522S.W.2d509(Tex.Crim.App.1975)

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-12

Prayer for Relief......................... 16

Appendix ................................... 21

Page 3 of 21 Pursuant to TEX.R.APP.P.68.4(b), Petitioner provides an Index of Authorities,

arranged alphabetically and indicating the pages of the petition where the authorities

are cited.

INDEX OF AUTHORITIES

CASES: PAGES

Ransonnette v. State,522S.W.2d509(Tex.Crim.App.1975)

McCutcheon v. State,363 S.W.2d 457 (Tex.Crim.App. 1962)

Refusal of defendant's motion for change of venue on ground that publicity given by radio, television and newspapers of district attorney's announcement that defendant was one of 12 persons he most wanted to convict and send to penitentiary deprived defendant of fair and impartial trial was not error in absence of showing that any prejudice found its way into jury box.

Pursuant to TEX.R.APP.P. 68.4©, Petitioner includes a short statement of why oral

argument would be helpful.

Statement re Oral Argument

Oral argument would be helpful to the decisional process. The Court and

Counsel could discuss the correct standard of review of the decision to deny a motion

for change of venue.

Most recently, the Court of Criminal Appeals stated:

Page 4 of 21 “Indeed, even extensive knowledge of the case or defendant in the community as a result of pretrial publicity is not sufficient if there is not also some showing of prejudicial or inflammatory coverage.8" Gonzalez v. State,222 S.W.3d446,449hn2(Tex.Crim.App.2007) regresar

Earlier, the Court of Criminal Appeals had set a more exacting standard:

“Refusal of defendant's motion for change of venue on ground that publicity given by radio, television and newspapers of district attorney's announcement that defendant was one of 12 persons he most wanted to convict and send to penitentiary deprived defendant of fair and impartial trial was not error in absence of showing that any prejudice found its way into jury box. McCutcheon v. State,363 S.W.2d 457 (Tex.Crim.App. 1962).

The Court and Counsel could discuss whether the Court of Appeals correctly

interpreted the standard set out by the Court of Criminal Appeals in Ransonnette v.

State,522S.W.2d509(Tex.Crim.App.1975) The Court of Appeals did not review the

prejudice from the publication of the District Attorney’s opinion that the defendant

was guilty.

Considering evolving standards of due process and due course, as well as

promulgation of higher standards of conduct and more precise rules of professional

conduct, the Court of Criminal Appeals and Counsel could discuss whether it is time

to revisit a half-century old opinion on the subject of the prosecutor’s public

expression of opinion on the defendant’s guilt. See: McCutcheon v. State,363 S.W.2d

457 (Tex.Crim.App. 1962)

Page 5 of 21 Refusal of defendant's motion for change of venue on ground that publicity given by radio, television and newspapers of district attorney's announcement that defendant was one of 12 persons he most wanted to convict and send to penitentiary deprived defendant of fair and impartial trial was not error in absence of showing that any prejudice found its way into jury box. McCutcheon v. State,363 S.W.2d 457 (Tex.Crim.App. 1962)

Pursuant to TEX.R.APP.P.68.4(d), Petitioner provides a statement of the case,

noting briefly the nature of the case, and reserving the details of the case for statement

with the pertinent grounds or questions.

Statement of the case

The nature of the case was a prosecution of Petitioner for murder.

Petitioner pleaded not guilty and tried guilt/innocence to a jury.

The jury found him guilty of murder.

The jury recommended and the judge imposed a sentence of life imprisonment.

Petitioner timely filed a Notice of Appeal to the Court of Appeals for the Third

District of Texas. The Supreme Court of Texas transferred the matter to the Court of

Appeals for the Thirteenth District of Texas.

A Panel of the Court of Appeals for the Thirteenth District of Texas affirmed

the judgment of conviction and sentence imposed.

Petitioner sought and obtained an extension and then timely filed Motions for

Rehearing and Rehearing En Banc. The Court of Appeals overruled both Motions on

Page 6 of 21 May 14, 2015. (Before Petitioner filed timely motions for rehearing and rehearing en

banc, Petitioner sought from the Court of and obtained from the Court of Criminal

Appeals a thirty-day extension to file this Petition until June 3, 2015.)

Petitioner timely presents this Petition for Discretionary Review.

Pursuant to TEX.R.APP.P.68.4(e), Petitioner provides a Statement of

Procedural History.

Statement of the Procedural History of the Case

The court of appeals is the Court of Appeals for the Thirteenth District of Texas.

(The matter was appealed to the Court of Appeals for the Third District of Texas. The

Supreme Court of Texas transferred the matter to the Court of Appeals for the

Thirteenth District of Texas.)

Re: TEX.R.APP.P.10.5(b)(3)(B), the date of Court of Appeals’ judgment is April 2,

2015.

Re: TEX.R.APP.P.10.5(b)(3)© the case number in the Court of Appeals is “NUMBER

13–13–00190–CR”.

Re: TEX.R.APP.P.10.5(b)(3) (D), the date every motion for rehearing or en banc

reconsideration was filed:

On May 1, 2015, Petitioner filed a Motion for Extension of Time to file the

Motion for Rehearing and to file the Motion for Rehearing En Banc. Those Motions

Page 7 of 21 for Rehearing were due on May 4, 2015. Petitioner asked till June 3, 2015 to file

those Motions for Rehearing.

An extension was granted until June 3, 2015. The Court of Appeals overruled

both motions on May 14, 2015. However, on May 4, 2015, Petitioner filed both

Motions for Rehearing and Motion for Rehearing En Banc. The 30th day after May 14,

2015 is Saturday, June 13, 2015. So, the Petition for Discretionary Review is due on

Monday, June 15, 2015.

This Petition is filed by sending it electronically to the Clerk of the Court of

Appeals to the following address:

Clerk, Court of Appeals for the Thirteenth District of Texas, 5th Floor, Hidalgo

County Administration Building, 100 East Cano Street, Edinburg, Texas.

Pursuant to TEX.R.APP.P.68.4(f), Petitioner states briefly, without argument,

the questions presented for review, expressed in the terms and circumstances of the

case, but without unnecessary detail.

GROUNDS FOR REVIEW

Grounds for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1. The Court of Appeals has decided an important question of state or federal

law in a way that conflicts with the applicable decisions of the Court of Criminal

Appeals or the Supreme Court of the United States.

Page 8 of 21 The question is: Does the Trial Court abuse its discretion in denying a change

of venue when the evidence is otherwise in equipoise but the District Attorney herself

announces publicly pretrial her personal opinion that the defendant is guilty.

The decision of the Court of Criminal Appeals is Ransonnette v.

State,522S.W.2d509(Tex.Crim.App.1975)

The Court of Appeals did not apply the standard correctly because it did not

consider the extreme prejudice of the district attorney’s having publicly expressed to

the small-town newspaper her personal opinion that the defendant was guilty. The

District Attorney charged Petitioner with causing his wife’s death and then told the

media, “he caused her death”.

Pursuant to TEX.R.APP.P.68.4(g), Petitioner provides a direct and concise

argument, with supporting authorities, amplifying the reasons for granting review.

ARGUMENT

The question is: Does the Trial Court abuse its discretion in denying a change

of venue when the evidence is otherwise in equipoise but the District Attorney herself

announces publicly pretrial her personal opinion that the defendant is guilty.

The decision of the Court of Criminal Appeals are Ransonnette v.

State,522S.W.2d509(Tex.Crim.App.1975) In Ransonnette the Court of Criminal

Appeals determined that the trial court did not abuse its discretion in denying a change

Page 9 of 21 of venue when the trial court was presented with an evenly divided choice of

witnesses and evidence regarding whether the defendant could receive a fair trial.

The Court of Appeals treated the record as if it were like the record in

Ransonnette...evenly divided. But the record was not evenly divided. The record

showed that the District Attorney herself expressed to the one newspaper in this

county of five-thousand subscribers her personal opinion that Petitioner was guilty.

Here the prosecutor expressed her personal opinion to the media that the defendant

“Jennifer Smith, stated that: We don't know the final 6 mechanism of death, but I want it to be clear that she died as 7 a result of Albert Medellin.” (RR 2 40) Another decision of the Court of Criminal Appeals is Williams v. State,170

S.W.2d 482(Tex.Crim.App.1943). “The venue of this case should have been changed.”

Williams v. State,170 S.W.2d 482(Tex.Crim.App.1943)

The question is important to the jurisprudence of the state because the District

Attorney is prohibited from expressing such opinion.

“(b) A lawyer ordinarily will violate paragraph (a), and the likelihood of a violation increases if the adjudication is on- going or imminent, by making an extrajudicial statement of the type referred to in that paragraph when the statement refers to:***(4) any opinion as to the guilt or innocence of a defendant

Page 10 of 21 or suspect in a criminal case or proceeding that could result in incarceration;” Tx Disc.R.Prof.Conduct§3.07 The analysis of the Court of Appeals in relying on Gonzalez, Montanez, De

Blanc, and Salazar is flawed precisely because none of those cases involved a public

and publicized opinion by the very District Attorney who was to prosecute the

defendant that he was guilty.

In Gonzalez, “local newscasts aired the surveillance tape depicting the murder

of the convenience store clerk.” Gonzalez v. State,222

S.W.3d446,447(Tex.Crim.App.2007) There is nothing in Gonzalez from which the

public might conclude that the person who was to prosecute the case might have or did

have important evidence about the case supporting her/his opinion that the defendant

was guilty. The Court of Appeals’ reliance on Gonzalez was misplaced.

In Salazar,

“The trial court admitted several newspaper stories and tran- scripts of television news coverage concerning appellant's case and the similar cases underway at the time.” Salazar v. State,38SW3d141,150hn13(Tex.Crim.App.2001) Nor was there anything in Salazar about the district attorney saying in the media

that the defendant was guilty. In Medellin the district attorney told the newspaper that

Medellin caused the death of Medellin’s wife, exactly what Medellin was charged

with.

Page 11 of 21 Montanez deals with presumed findings of fact. It was a matter involving a

motion to suppress. Montanez v. State,195 S.W.3d101,106hn4(Tex.Crim.App.2006)

Montanez does not treat venue.

In DeBlanc, the appellant’s own evidence on publicity was weak and

conflicting and the state put on twenty-five witnesses who said the murder defendant

could get a fair trial in Liberty County. DeBlanc v.

State,799SW2d701,704hn2(Tex.Crim.App.1990)

Nor was there anything in DeBlanc about the district attorney saying in

the media that the defendant was guilty. In Medellin the district attorney told the

newspaper that Medellin caused the death of his wife, exactly what he was charged

McCutcheon distinguished

This is not an appeal and Petitioner is not trying to treat this process as if it were

one seeking a writ of error. The Court of Appeals simply did not apply the standard

correctly because it did not examine the prejudice adequately.

Ryser, infra, relies on Mendez, another half-century old decision adopted

before the 1965 Code of Criminal Procedure, before present rules of professional

conduct were in effect, and before American Bar Association Standards for a Fair

Trial and a Free Press were published.

Page 12 of 21 In Mendez:

“District Attorney Briscoe ‘has been reported by Television and Radio news reporters and by all of the three Houston news- papers both by story and photographs that Guadalupe Morales Mendez was a person charged with an offense in Harris County and was one of twelve he most wanted to convict and most wanted to see in the penitentiary..........’”

Mendez v. State,362SW2d841,842hn2(Tex.Crim.App.1962) The Court of Criminal Appeals did not reach the venue matter in Mendez

because trial counsel had not reserved an exception, another ancient practice no longer

used. Mendez v. State,362SW2d841,843hn3(Tex.Crim.App.1962)

The Court of Appeals did not consider the

“nature of the publicity”. Gonzalez at 451hn7

The Court of Criminal Appeals set out the test for whether pretrial publicity was

prejudicial:

“In examining whether the pretrial publicity is prejudicial and inflammatory, a trial court may take three matters into consider- ation: 1) the nature of the publicity, 2) any evidence presented at a change of venue hearing, and 3) testimony received from venire members at voir dire.17" Gonzalez at 451hn7

The Court of Appeals did not consider the "nature of the publicity", namely that

the District Attorney told the small-town's only newspaper that the defendant

caused his wife's death, that he was guilty.

In Gonzalez the Court of Criminal Appeals noted that it had only reversed for

Page 13 of 21 the trial court's failure to grant a change of venue onetime, in Jack Ruby's case,

Rubenstein v. State, 407 S.W.2d 793 (Tex. Crim. App. 1966)

In Gonzalez, the Criminal Appeals said that showing a video of the crime was

"not sufficient to place beyond the zone of reasonable disagreement the trial court's

decision to deny appellant's motion." Gonzalez at 451 hn8

In Medellin, the Court of Criminal Appeals should clarify the standard in the

light of Rubenstein; it should hold that the District Attorney's publicizing of her

opinion that Petitioner "caused the death of his wife" after the very same District

Attorney had charged that Petitioner "caused the death of [his wife]" was indeed

sufficient to place beyond the zone of reasonable disagreement the trial court's

decision to deny appellant's motion."

Other jurisdictions' treatment of prosecutor's pretrial statements

re defendant’s guilt. The Court of Criminal Appeals may consider the

opinions of other jurisdictions . “ Numerous decisions of other appellate courts,

including Texas courts of appeals and courts of other jurisdictions, are in accord with

our holdings ...."Lawrence v. State ,240 S.W.3d 912,917 hn12 fn24(2007)

Those opinions about the prosecutor's pretrial statements about the

defendant's guilt are gathered at "Pretrial Publicity in Criminal Case as Ground for

Change of Venue" 33 A.L.R.3d 17.

Page 14 of 21 "Prosecuting attorney-

newspaper under control of § 27[a]

participation in release of publicity §§ 20, 27[a],

32[a], 40, 46 television appearances by § 32[a]"

When the judge said in a letter that defense counsel knew the defendant was guilty in a murder case, the judge was disqualified. His letter was publicized in the small-town newspaper. Even though there was a new judge, the trial was deemed unfair because of the comment by a trial official on the defendant’s guilt. People v. McKay,236 P2d145(Cal.1951) Where the newspaper coverage went beyond objective dissemination of information by reporting of extrajudicial statements by prosecutors, the trial judge abused his discretion in denying a change of venue and the Supreme Court of Montana granted a peremptory writ. State ex rel. Coburn v Bennett,655 P2d 502(Mont.1982) It was reversible error to refuse change of venue for defendant accused of trafficking in heroin where prosecutor, at press conference immediately after defendant's arrest, stated that defendant was guilty. State v Wilson (W Va) 202 SE2d 828 (W. Va.) “In this press conference which was reported by newspapers, radio and television in and around Monongalia County, the prosecutor made several extra-judicial assertions. He strongly indicated that this defendant, among others, was guilty. ”State v Wilson, 202 SE2d 828 (W. Va.1973)

The Court in Wilson found prosecutorial misconduct and cumulative error and ordered a new trial.

Page 15 of 21 The Court of Appeals in Medellin misconstrued the standard of review on denial of a motion for change of venue. The Court of Criminal Appeals should grant this petition for discretionary review, allow full briefing, and order a new trial. The Court of Appeals in Medellin misapplied the test for prejudice in discounting the fact that there was only one newspaper in the county. In Coburn, there was only one newspaper in the county. The “Independent Record, the only daily newspaper in Lewis and Clark County.” The population of Lewis and Clark Co. In 1982 was about 52,000. (Google, “population Lewis and Clark County, accessed 06/11/15). Comal County had about 100,000 at the time of trial (Google, “population Lewis and Clark County, accessed 06/11/15). In Coburn, the prosecutors intimated their opinion of the strength of their evidence: ““County Attorney Charles Graveley was shaking his head in wonder. “ ‘When you read her statement,’ he said of Thursday's 11-year-old rape victim, ‘you'd think she was 28 or 29, and well-educated at that. “ ‘It's the best statement from a rape victim I have seen in five years,’ he said. “Assistant County Attorney Steve Garrison had another way of putting it this morning. “ ‘He picked the wrong little girl,’ he said. ‘She's the kind that when you say, “describe the vehicle,” she just does it.’” Coburn at 503 [internal quotations unchanged,lw] The County Attorney also said: “Graveley said it was his opinion that $100,000 bail to keep Coburn in jail to protect the community was legally proper.” Coburn at 504 “ ‘Once he's found insane, he virtually has a license to commit another crime and another crime and not go to prison,’ Graveley said.” Coburn at 504

Page 16 of 21 The prosecutor in Coburn plainly told the only newspaper in the county that he thought the defendant was guilty. “County Attorney Graveley was campaigning for reelection during the pendency of the Coburn case. The Independent Record ran a “Candidates Say”“ ‘The bail in serious crimes must be set sufficiently high to insure that the defendant is not going to commit any more crimes against our citizens while awaiting trial on the former charge.’ ” (Emphasis supplied.)” [Court supplied emphasis,lw] The Court condemned the prosecutor’s statements in Coburn: “County Attorney Graveley's campaign statement that bail should insure that “the defendant is not going to commit any more crimes” shows a total disregard for the fundamental constitutional protection embraced by the concept of presumed innocence, and under the circumstances implies that relator is guilty.” Coburn at 507hn5 Although not in the record, in deciding whether to grant this petition for discretionary review, the Court of Criminal Appeals may note that the prosecutor in Medellin was running for election after Medellin was arrested in 2010. She was sworn in January of 2011. Medellin was indicted in April of 2011. In Medellin, the District Attorney’s comments were even more explicit than those in Coburn. The District Attorney charged that Medellin caused the death of his wife and then told the county newspaper that “he caused the death of his wife”. The Court of Appeals misapplied the standard when it discounted the District Attorney’s comment. In applying the standard, the Court of Appeals did not consider the effect of there being one newspaper in the County. The evidence showed that Comal had 100,000 people and that 5,000 subscribed to the newspaper, the only newspaper. The Court of Appeals should have considered the prejudicial effect of publishing the prosecutor’s opinion that the Petitioner “caused his wife’s death”.

Page 17 of 21 “While the exact figures of the number of people who saw the telecast were in doubt, the court stated that there could be no doubt that it was a very large number and that the potential for influence on possible talesmen was significant, and that the effect of the telecast could only be prejudicial.” People v Martin (1963) 19 App Div 2d 804, 243 NYS2d 343 The Court of Appeals misapplied the standard by treating Harris County and Comal County as if they were the same for purposes of publicity. The population of the county matters when considering prejudice and change of venue. The Court of Appeals relied on Ryser v. State,453 SW3d 17,37(Tex.App.–Houston[1st Dist]2014,pet.ref’d) Ryser dealt with a news conference involving the mayor, a state representative, and the district attorney. The opinion in Ryser does not cite any statement or opinion from the district attorney. The Court of Appeals considered the size (population) of Harris County in deciding that prejudice was not proven. The Court of Appeals in Ryser also noted that there was a video of the crime.Ryser v. State,453 SW3d 17,37(Tex.App.–Houston[1st Dist]2014,pet.ref’d) The Thirteenth Court of Appeals’ reliance on Ryser was misplaced. Harris has almost thirty-six times more population that Comal. Harris has “population, 2014 estimate 4,441,370". http://quickfacts.census.gov/qfd/states/48/48201.html accessed May 25, 2015) Comal has “population,2014 estimate123,694".(http://quickfacts.census.gov/qfd/states/48/48091.html accessed May 25, 2015) The Court of Criminal Appeals will please take judicial notice of those statistices from the United States Census Bureau. TEX.R.EVID.201(d) The case against Medellin was circumstantial; there was no statement from the defendant and there were no eyewitnesses.

Page 18 of 21 CONCLUSION The Court of Criminal Appeals should grant this petition and allow full briefing. In the Court of Criminal Appeals of Texas No. PD-0484-15 On Petition for Discretionary Review of the following: CAUSE NO 03-13-00190-CR IN THE COURT OF APPEALS FOR THIRTEENTH JUDICIAL DISTRICT

ALBERTO RODRIGUEZ MEDELLIN, PETITIONER V. THE STATE OF TEXAS ON APPEAL FROM COMAL COUNTY, TX

TRIAL COURT CAUSE NO. CR-2011-196

CERTIFICATE OF SERVICE

A copy of the Petition for Discretionary Review has been forwarded as indicated below, to which this certificate is attached, to:

Honorable Jennifer Tharp, Criminal District Attorney of Comal County, Texas 150 North Seguin Avenue, Suite 307, New Braunfels, Texas 78130 Fax: 830-620-5599 and Email:contact7@co.comal.tx.us Hon. Laura Burton Bates, Assistant Criminal District Attorney, 150 N. Seguin Ave., Suite 307, New Braunfels, TX 78130 Fax: 830-620-5599 and Email:contact7@co.comal.tx.us Lisa C. McMinn, State Prosecuting Attorney, P.O. Box 12405, Austin, TX 78711 I emailed and faxed it on May 4, 2015 Fax 512-463-5724 and Regular US Mail.

Law Office of Larry Warner Respectfully submitted

Page 19 of 21 June 15, 2015 By:/S/ LARRY WARNER Larry Warner

In the Court of Criminal Appeals of Texas No. PD-0484-15 On Petition for Discretionary Review of the following: CAUSE NO 03-13-00190-CR IN THE COURT OF APPEALS FOR THIRTEENTH JUDICIAL DISTRICT

ALBERTO RODRIGUEZ MEDELLIN, PETITIONER V. THE STATE OF TEXAS ON APPEAL FROM COMAL COUNTY, TX

I, the undersigned counsel, certify that this Petition for Discretionary Review was prepared using WordPerfect X3 and complies with TexR.App.Proc. 9.4 and contains 4,040 words.

Law Office of Larry Warner Respectfully submitted June 15, 2015 By:/S/ LARRY WARNER Larry Warner

APPENDIX

Order

Page 20 of 21 A copy of the letter Denying the Motions for Rehearing and Appellat's motion for Rehearing en Banc is attached. In a Petition for Discretionary Review, the Court of Criminal Appeals of Texas may take judicial notice of documents in the lower court in the same case.

An “appellate court may take judicial notice of its own records in the same or related proceedings involving same or nearly same parties, 1. Huffman v. State, 479 S.W.2d 62, 68 (Tex.Cr.App.1972); Ex parte Flores, 537 S.W.2d 458 (Tex.Cr.App.1978)” Turner v. State,733 S.W.2d 218,223 hn1(Tex.Crim.App.1987

The website of the THIRTEENTH Court of Appeals notes: “05/14/15 Motion for rehearing DENIED Appellant 05/14/15 Motion for rehearing En Banc DENIED Appellant Event Type: Motions DENIED Description: Appellant Date: 05/14/15 Disposition: Motions DENIED Opinion Written:”

Page 21 of 21 NUMBER 13-13-00190-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ALBERT RODRIGUEZ MEDELLIN, Appellant,

THE STATE OF TEXAS, Appellee.

On appeal from the 207th District Court of Comal County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Longoria Memorandum Opinion by Justice Rodriguez Appellant Albert Rodriguez Medellin was indicted for murder and aggravated

assault of a member of his household in connection with the death of his girlfriend, Antonia

Espinoza. See TEX. PENAL CODE ANN. §§ 19.02(b)(1), 22.02(a)(2), (b)(1) (West, Westlaw through 2013 3d C.S.).1 The indictment alleged that Medellin caused Espinoza's death

by striking her with his fists and committed aggravated assault by causing Espinoza

serious injury with a deadly weapon, his hands. The indictment also alleged two prior

convictions, one for bail jumping and one for burglary of a non-habitation. The jury

convicted Medellin of both offenses and sentenced him to ninety-nine years' incarceration

for the murder charge and fifty years' incarceration for the aggravated assault charge.

On appeal, Medellin challenges both convictions. By seventeen issues, Medellin

argues that: the trial court erred in refusing to grant a change of venue; the evidence

was insufficient to support the jury's murder verdict; the jury charge contained an

erroneous instruction; certain comments by the prosecutor during the case and closing

argument were improper; the trial court erred in admitting expert and lay testimony about

the deceased's wounds and cause of death; the trial court erred in admitting, during the

punishment phase, certain evidence of Medellin's prior offenses and failing to question

the jury about those offenses; defense counsel was ineffective; and cumulative error

deprived Medellin of a fair trial. We affirm.2

I. Venue3

By his first issue, Medellin argues that the trial court abused its discretion in

overruling his motion for a change of venue. Medellin argues that the publicity of his

1 Medellin was also indicted for injury to a disabled individual, but the State did not pursue that charge at trial. See TEX. PENAL CODE ANN. § 22.04(a)(1) (West, Westlaw through 2013 3d C.S.). 2Pursuant to a docket-equalization order issued by the Supreme Court of Texas, this appeal has been transferred to this Court from the Third Court of Appeals in Austin, Texas. See TEX. GOV'T. CODE ANN. § 73.001 (West, Westlaw through 2013 3d C.S.). 3 Because this is a memorandum opinion and the parties are familiar with the facts, we will not

recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4. 2 case in Comal County, a "small county with only one newspaper," was "pervasive and

prejudicial." More specifically, Medellin argues that his chance of a fair trial in Comal

County was prejudiced by the district attorney talking to the media about what she

perceived as Medellin's guilt.

A change in venue may be granted on a criminal defendant's motion if supported

by the defendant's affidavit and the affidavits of two other credible residents of the county

if, within the county, there is either (1) "so great a prejudice against [the defendant] that

he cannot obtain a fair and impartial trial," or (2) "a dangerous combination against [the

defendant] instigated by influential persons, by reason of which he cannot expect a fair

trial."4 TEX. CODE CRIM. PROC. ANN. art. 31.03(a) (West, Westlaw through 2013 3d C.S.).

Medellin's motion sought a change of venue under the first justification—that such a

prejudice against him existed in Comal County that he could not obtain a fair and impartial

trial.

To justify a change of venue based on public attention sparked by media, a

defendant must show that the "publicity was pervasive, prejudicial, and inflammatory."

Gonzalez v. State, 222 S.W.3d 446, 449 (Tex. Crim. App. 2007); Salazar v. State, 38

S.W.3d 141, 150 (Tex. Crim. App. 2001). "The mere existence of media attention or

publicity is not enough, by itself, to merit a change of venue." Gonzalez, 222 S.W.3d at

449. Even extensive knowledge of the case in the community is not sufficient if there is

not a showing of prejudicial or inflammatory coverage. Id. The defendant "bears a

4 We note that Medellin's motion was not accompanied by his affidavit or the affidavit of two other credible residents of Comal County. Nonetheless, we will address Medellin's substantive complaint in the interest of justice. 3 heavy burden to prove the existence of such prejudice in the community that the likelihood

of obtaining a fair and impartial jury is doubtful." DeBlanc v. State, 799 S.W.2d 701, 704

(Tex. Crim. App. 1990).

We review the denial of a change of venue request for an abuse of discretion.

Gonzalez, 222 S.W.3d at 449. We give great deference to the trial court, which is in the

best position to resolve issues involving conflicts in testimony and to evaluate the

credibility of the witnesses. Id. at 452. If the trial court does not make explicit findings

of fact, as is the case here, we will assume that the trial court made implicit findings of

fact that support its ruling as long as those findings are supported by the record.

Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App. 2006). As long as the trial

court's ruling is within the zone of reasonable disagreement, the trial court does not abuse

its discretion in denying the venue motion. See Gonzalez, 222 S.W.3d at 449.

Four witnesses testified at the hearing on Medellin's venue motion. Medellin

called two witnesses, one of whom testified that she had already formed her opinion about

Medellin's guilt from reading the articles in the local newspaper and the other of whom

testified that Medellin would be unable to obtain a fair trial in Comal County because the

news articles were not objective. The State called two witnesses, as well. The first

witness was a Comal County Commissioner who testified that in all her contacts with

constituents, she never heard anything about Medellin. The second witness was a

citizen of the Comal County who testified that even though he remembered the initial

publicity about the crime, he did not remember the names of the parties or crimes

involved.

4 Medellin introduced and the trial court admitted four local newspaper articles

published in the months following the crime. In those articles, the reporter described the

beating incident and noted Medellin's criminal history. In each article, the district attorney

was interviewed and stated that she believed Medellin was guilty of the offense. In two

of the articles, Medellin's defense counsel was interviewed and stated that Medellin was

entitled to a fair trial and should not be tried and convicted through media publicity.

Finally, Medellin introduced and the trial court admitted documents purporting to show the

circulation of the local newspaper; the trial court concluded that the document showed

that of the 108,500 residents of Comal County, less than 5,000 subscribed to the

newspaper.

The evidence before the trial court on the venue motion was conflicting. Although

the newspaper articles arguably contained predispositions about Medellin's guilt—

including information about his prior criminal history and the district attorney's statements

that she believed Medellin was guilty—there was also an entire article dedicated to

defense counsel's rebuttal; in it, defense counsel extensively discussed Medellin's right

to a fair trial and admonished the newspaper for publishing articles seemingly presuming

Medellin's guilt. Moreover, the testimony by Medellin's witnesses was directly

contradicted by the testimony of the State's witnesses. The trial court acted within its

discretion in crediting the State's witnesses and disbelieving Medellin's. See id.

In sum, we cannot conclude that Medellin carried his burden to prove that the

media coverage of this crime was so pervasive and prejudicial that he could not obtain a

fair trial in Comal County. See id.; see also DeBlanc, 799 S.W.2d at 704. There was

5 sufficient evidence from which the trial court could have reasonably come to the opposite

conclusion. The mere existence of the media coverage, which is arguably all that

Medellin proved, was not enough to support a change of venue. See Gonzalez, 222

S.W.3d at 449. The trial court did not abuse its discretion in denying Medellin's motion.

Medellin's first issue is overruled.

II. Sufficiency of the Evidence

By his second issue, Medellin argues that the evidence at trial was insufficient to

prove that he caused the death of Espinoza.5 Specifically, Medellin argues that:

There were two doctors and two different and opposed opinions about the cause of death. The [S]tate’s doctor was incompetent to testify on the record, as she had not even read the complete medical reports. The jury was not free to choose to believe the testimony of an incompetent witness.

"The standard for determining whether the evidence is legally sufficient to support

a conviction is 'whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.'" Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.

App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original);

5 By his third issue, Medellin asks the Court to perform a factual sufficiency analysis and conclude that the conflicting evidence regarding Espinoza's cause of death rendered it factually insufficient. But in 2010, in Brooks v. State, the Texas Court of Criminal Appeals merged factual and legal sufficiency reviews; we now perform only one review of the evidence based on the United States Supreme Court's Jackson v. Virginia case. See Brooks, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson, 443 U.S. 307, 319 (1979)). As an intermediate appellate court, we are bound by the precedent of our state's highest criminal court. See Ervin v. State, 331 S.W.3d 49, 53 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd) ("As an intermediate court of appeals, we are bound to follow the precedent of the court of criminal appeals."); see also TEX. CONST. art. 5, § 5 (providing that the court of criminal appeals is final authority for criminal law in Texas); Flores v. State, No. 13-12-00606-CR, 2014 WL 1514129, at *2 (Tex. App.—Corpus Christi Apr. 17, 2014, pet. ref'd) (mem. op., not designated for publication) ("[W]e are bound to follow the decisions of the court of criminal appeals and have no authority to change the current standard of review."). We decline Medellin's invitation to perform an analysis abolished by the court of criminal appeals over four years ago. Medellin's third issue is overruled. 6 see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010). "The jury is the

exclusive judge of the credibility of the witnesses and of the weight to be given testimony,

and it is also the exclusive province of the jury to reconcile the conflicts in the evidence."

Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (citing Jones v. State,

944 S.W.2d 642, 647 (Tex. Crim. App. 1996)).

We measure the sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327

(Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.

App. 1997)). Such a charge is one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State's burden of proof or unnecessarily

restrict the State's theories of liability, and adequately describes the particular offense for

which the defendant was tried. Id. Medellin committed the offense of murder, as

charged in the indictment in this case, if he "intentionally or knowingly cause[d] the death"

of Espinoza by striking her in the head and/or chest with his hands or fists. See TEX.

PENAL CODE ANN. § 19.02(b)(1).

We have reviewed all of the evidence presented at Medellin's trial and believe

there was ample evidence to prove the cause of death alleged in the indictment. It is

undisputed that Medellin and Espinoza were engaged, lived together, and had a five-

month-old baby. Espinoza suffered from severe scoliosis that caused her to develop a

deformed chest and abdomen.

On the night of July 30, 2010, Medellin drove Espinoza to the emergency room

because she was not breathing. The nurse who met them at their vehicle testified that,

7 on arrival, Espinoza did not have a pulse and was not breathing; she also testified that

Espinoza had bruising on her face and hands and that "fresh blood" was flowing from

Espinoza's nose. Espinoza was eventually resuscitated but remained in a coma. The

doctor who treated Espinoza in the emergency room testified that Espinoza had "obvious

trauma to the face, head, and chest, as well as the abdomen." He testified that

Espinoza's pupils were "fixed" and "dilated," which meant a "high likelihood of brain

injury." He testified that a CT scan showed air outside of Espinoza's lungs and stomach;

he testified that "there are a lot of causes" for these conditions, "but in this case the most

likely scenario was from trauma—blunt trauma."

There was further testimony that Medellin acted belligerently in the waiting room

of the hospital. Police officers who arrived at the hospital to speak with Medellin testified

that his knuckles appeared swollen. Medellin told the officers that he and Espinoza had

been arguing earlier that day. Officers who were dispatched to Medellin and Espinoza's

apartment testified that the apartment was in disarray; a lamp was overturned, and they

recovered clumps of hair from the floor. Forensic investigators later discovered tissue

attached to the hair, which indicated that the hair was pulled out and that it did not fall out

naturally.

After being in a coma for nearly four months, Espinoza was removed from life

support and died. The medical examiner who performed Espinoza's autopsy, Dr.

Jennifer Rulon, testified that Espinoza's scoliosis caused her abdomen to be twisted,

leaving her with a small right lung and normal-sized left lung. Rulon testified that

Espinoza died " as the result of complications of anoxic encephalopathy," or brain damage

8 and lack of oxygen to the brain. Rulon testified that she examined Espinoza's medical

records and the police reports and, from those, determined that Espinoza's condition was

caused by an assault; thus, Rulon testified, Espinoza's "manner of death was determined

to be a homicide."

Finally, a friend of Espinoza's testified that on the night before Espinoza was

rushed to the hospital, she had visited Espinoza at her and Medellin's apartment. The

friend testified that Espinoza "was very scared and afraid" that Medellin was going to "hurt

her." Espinoza told her friend that, in the past, Medellin had "pulled her hair" and

unplugged her oxygen tank. Espinoza told her friend that Medellin beat her after he had

been drinking, and because Medellin and a friend were drinking that evening, Espinoza

was scared he would hurt her afterward.

Medellin seems to argue that the evidence was insufficient because the testimony

of the State's expert, Dr. Rulon, and his defense expert as to Espinoza's cause of death

conflicted. But it is precisely the job of the jury to resolve conflicts in the evidence, and

the jurors here were entitled to believe the State's expert over Medellin's. See

Wesbrook, 29 S.W.3d at 111.

Medellin also argues that the jury was not entitled to consider the testimony of Dr.

Rulon because she was incompetent. However, the record in this case shows that

Medellin made no objections to the testimony of the State's expert regarding Espinoza's

cause of death, so the competence of the expert was not an issue brought to the jury's

attention. Regardless, we consider all the evidence in the record in our sufficiency

review, whether or not properly admitted. See Powell v. State, 194 S.W.3d 503, 507

9 (Tex. Crim. App. 2006) ("[A] reviewing court is permitted to consider all evidence in the

trial court record, whether admissible or inadmissible, when making a legal-sufficiency

determination."); Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001) ("When

conducting a sufficiency review, we consider all the evidence admitted, whether proper

or improper."). So it is irrelevant whether the testimony of the State's expert was

incompetent and therefore inadmissible.

Rather, from the evidence outlined above, a rational jury could have concluded

that Medellin beat Espinoza on her chest and head with his hands: when she arrived at

the hospital, Espinoza had bruising on her chest, abdomen, face, and head; Medellin

admitted that he and Espinoza had been arguing and was observed to have swollen

knuckles; Dr. Rulon testified that the injuries that led to Espinoza's death, her brain

damage and lack of oxygen to her brain, were caused by an assault; and there was

evidence that, the night before Espinoza was taken to the hospital with her injuries, she

had feared that Medellin might beat her.

Having viewed the evidence in the light most favorable to the verdict, we conclude

that from the evidence outlined above, the jury in this case could have rationally found,

beyond a reasonable doubt, that Medellin caused Espinoza's death by striking her head

and/or chest with his hands or fists. See Johnson, 364 S.W.3d at 293–94. We overrule

Medellin's second issue.

III. Jury Charge

By his fourth issue, Medellin argues that the jury charge contained an erroneous

instruction regarding the statute of limitations for aggravated assault causing serious

10 bodily injury to a family member. Medellin argues that the instruction stated that there

was no statute of limitations when, in fact, there is a two-year statute of limitations for that

offense.6 Medellin argues that the offense of aggravated assault was committed more

than two years before the indictment in this case. Medellin argues that this instruction

caused him egregious harm.7

We note at the outset that Medellin's argument is inadequately briefed. He

provides no law on charge error and no analysis as to why the error, if any, caused him

egregious harm. See TEX. R. APP. P. 38.1(i).

But even if the issue was adequately briefed, it lacks merit. First, contrary to

Medellin's assertion, the instruction in the charge regarding limitations states, "The statute

of limitations for the offense of Aggravated Assault with a Deadly Weapon Causing

Serious Bodily Injury to a Member of the Household is two (2) years." We believe it is a

misstatement of the record to assert that the trial court entirely failed to inform the jury of

the applicable statute of limitations.

Medellin may be referring to the next sentence in the limitations instruction, which

reads as follows: "Therefore, proof that the offense of Murder and Aggravated Assault

6 The State notes that the correct statute of limitations for aggravated assault is an unsettled issue.

See State v. Bennett, 415 S.W.3d 867, 869 (Tex. Crim. App. 2013) But as discussed later in this section, even assuming that the correct statute of limitations is two years, we still find no error in the charge. 7 Because no objection was lodged as to the limitations instruction in the charge, Medellin correctly

states that he must show that the erroneous instruction caused him egregious harm. See Gillette v. State, 444 S.W.3d 713, 727 (Tex. App.—Corpus Christi 2014, no pet.) (op. on reh'g) ("[W]here the error is urged for the first time on appeal, a reviewing court will search for 'egregious harm.'") (citing Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998) (quoting Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994))).

11 with a Deadly Weapon Causing Serious Bodily Injury to a Member of the Household, if

any, occurred prior to the filing of the indictment on April 13, 2011 is sufficient." To the

extent that this sentence implies that there is no statute of limitations for aggravated

assault, we still find no harm. See Gillette v. State, 444 S.W.3d 713, 730–31 (Tex.

App.—Corpus Christi 2014, no pet.) (citing Allen v. State, 253 S.W.3d 260, 264 (Tex.

Crim. App. 2008)) (other citations omitted) ("Jury-charge error is egregiously harmful if it

affects the very basis of the case, deprives the defendant of a valuable right, or vitally

affects a defensive theory."). Even if the charge clearly instructed the jury that the

applicable statute of limitations is two years, Medellin would have gained no valuable right

or defensive theory. The indictment alleged that the aggravated assault offense was

committed on July 30, 2010. The indictment in this case was filed on April 13, 2011. In

other words, the indictment was filed less than a year after the alleged offense, which was

well-within the two-year statute of limitations. A corrected charge would have provided

Medellin with no benefit. We overrule his fourth issue.

IV. Comments on Silence

By his fifth issue, Medellin argues that the prosecutor's "repeated comments" on

Medellin's failure to testify deprived him of a fair trial. We note first that Medellin provides

no record cites to guide the Court to these "repeated" comments within the six-volume

trial record.8 See TEX. R. APP. P. 38.1(i). Regardless, in his brief, Medellin concedes

that defense counsel lodged no objections to these comments. He therefore failed to

8 Medellin does refer this Court to the following sentence from the prosecutor's closing argument: "Therefore, proof that the offense of murder or aggravated assault with a deadly weapon, causing serious bodily injury to a member of the household, if any, occurred prior to the filing of the indictment on April 13th, 2011, is sufficient." We disagree that this is a comment on Medellin's failure to testify. 12 preserve this complaint for our review. See TEX. R. APP. P. 33.1(a); Brewer v. State, 367

S.W.3d 251, 253 (Tex. Crim. App. 2012). We overrule Medellin's fifth issue.

V. Admission of Testimony

A. Expert Testimony

By his sixth issue, Medellin argues that the trial court erred in allowing the

emergency room physician who treated Espinoza to testify that Medellin's hands were a

deadly weapon. By his seventh issue, he argues that the trial court erred in allowing the

medical examiner who performed Espinoza's autopsy to testify that Espinoza's death was

a homicide. Medellin argues that this testimony involved legal conclusions beyond the

doctors' expertise. But Medellin made no objections to the foregoing testimony. He

therefore failed to preserve these complaints for our review. See TEX. R. APP. P. 33.1(a);

Reyna v. State, 168 S.W.3d 173, 177–79 (Tex. Crim. App. 2005). We overrule his sixth

and seventh issues.

B. Police Officer

By his tenth issue, Medellin argues that "the admission of testimony of officers that

the deceased's wounds were defensive" deprived Medellin of a fair trial. Again, we note

that Medellin provides no record cites to guide the Court to the complained-of "testimony

of officers" within the six-volume trial record. See TEX. R. APP. P. 38.1(i). But in our

review of the record, we found that two New Braunfels Police Department officers testified

that, based on their experience with assault cases, they believed the bruises on

Espinoza's hands were defensive wounds. Medellin made no objections to this

testimony. He therefore failed to preserve this complaint for our review. See TEX. R.

13 APP. P. 33.1(a); Reyna, 168 S.W.3d at 177–79. We overrule Medellin's tenth issue.

VII. Improper Argument

A. Argument on the Jury Charge

By his eighth issue, Medellin argues that the prosecutor made an improper

comment during her closing argument when she suggested to the jurors that they could

use Medellin's prior convictions in their deliberations on his guilt in this case. Medellin

did not object to this comment, so failed to preserve this complaint for our review. See

TEX. R. APP. P. 33.1(a); Mays v. State, 318 S.W.3d 368, 394 (Tex. Crim. App. 2010) ("[W]e

will not review the propriety of the prosecutor's arguments, [where] appellant failed to

object to those arguments at trial."). We overrule his eighth issue.

B. Comments About Domestic Violence

By his ninth issue, Medellin argues that the prosecutor made an improper comment

during closing argument when she suggested that the defense's evidence attempting to

attribute Espinoza's injuries to her underlying health problems "sound[ed] like a lot of

excuses we hear in domestic violence cases." Again, Medellin did not object to this

comment, so failed to preserve this complaint for our review. See TEX. R. APP. P. 33.1(a);

Mays, 318 S.W.3d at 394. We overrule his ninth issue.

VIII. Prior Offenses During Punishment

In five issues, Medellin complains of the trial court's admission and consideration,

during the punishment stage of Medellin's trial, of evidence related to the prior convictions

alleged by the State in the indictment to enhance Medellin's punishment.

A. Admission of Evidence

14 1. Gang Involvement

By his eleventh issue, Medellin argues that the trial court deprived him of a fair trial

by admitting testimony from Detective Jason Cline of the Comal County Metro Narcotics

Task Force that identified Medellin as a gang member. Medellin argues that this

testimony "deprived [him] of an individualized punishment because he was made

responsible for the criminal acts of others." Medellin lodged no objections during the

entirety of Detective Cline's testimony. He therefore failed to preserve this complaint for

our review. See TEX. R. APP. P. 33.1(a); McFarland v. State, 928 S.W.2d 482, 511–12

(Tex. Crim. App. 1996), overruled on other grounds, Mosley v. State, 983 S.W.2d 249,

263 (Tex. Crim. App. 1998) (holding that a defendant failed to preserve error concerning

the admission of evidence during the punishment phase of trial where the defendant did

not object). We overrule Medellin's eleventh issue.

2. Fingerprint Expert

By his twelfth issue, Medellin argues that the trial court erred in admitting State's

exhibit 75, which included a fingerprint card connecting him to the alleged prior conviction

for burglary of a non-habitation. Medellin argues that the testimony of the State's witness

as to the fingerprint card failed to show that the fingerprints on the card were Medellin's.

Therefore, Medellin argues, the exhibit was inadmissible to show Medellin as the

perpetrator of the prior burglary offense. Medellin provides no legal authority or

substantive argument in support of this issue. We therefore conclude that this issue has

been inadequately briefed, and Medellin has waived our review. See TEX. R. APP. P.

15 38.1(i). Medellin's twelfth issue is overruled.9

B. Misclassified Offense

By his thirteenth issue, Medellin appears to argue that the trial court erred in

allowing his punishment range to be enhanced to habitual-offender status, see TEX. PENAL

CODE ANN. § 12.42(d) (West, Westlaw through 2013 3d C.S.), because the classification

of the second alleged prior conviction, burglary of a non-habitation committed on April 7,

1990, was reduced by the Legislature in 1994 from a second-degree felony to a state jail

felony. See id. ("A previous conviction for a state jail felony . . . may not be used for

enhancement purposes under [the habitual-offender] subsection."). In our review of the

record, we have found no objection by Medellin on these grounds to either the jury charge,

which allowed the jury to assess a punishment in the habitual-offender range, or the

judgment, which imposed the habitual-offender sentence. As such, Medellin failed to

preserve this issue for our review. See TEX. R. APP. P. 33.1(a).

And even if Medellin had preserved this issue, a prior felony conviction may be

used to enhance punishment for a subsequent offense, even if the prior conviction has

since been reclassified as a misdemeanor. See Alvarado v. State, 596 S.W.2d 904, 906

(Tex. Crim. App. [Panel Op.] 1980); Boren v. State, 182 S.W.3d 422, 423 (Tex. App.—

Fort Worth 2005, pet. ref'd). The trial court therefore did not err in allowing Medellin's

punishment to be enhanced under the habitual-offender statute. We overrule Medellin's

thirteenth issue.

9 Medellin's fourteenth issue appears to be a restatement of his eleventh and twelfth issues, on which we have already ruled above. We decline to address these issues a second time so do not reach his fourteenth issue. See TEX. R. APP. P. 47.1. 16 C. Submission of Priors to Jury

By his fifteenth issue, Medellin argues that the trial court erred in failing to submit,

at punishment, a question to the jury on his prior convictions. Generally citing McGee v.

State as support, Medellin argues that even though he pleaded true to the prior

convictions, the State was nonetheless required to provide evidence supporting the pleas

of true and failed to do so in this case. See 725 S.W.2d 362 (Tex. App.—Houston [14th

Dist.] 1987, no pet.). McGee stands for no such proposition.

McGee involved the guilt-innocence stage of the defendant's trial, not the

punishment stage. Id. at 364. In McGee, the State attempted to use an extraneous

offense to prove the defendant's intent to commit the charged offense and his identity as

the perpetrator of the charged offense. Id. at 364–65. The trial court admitted the

evidence of the extraneous offense, and the defendant complained on appeal that the

evidence was prejudicial because the evidence did not show intent or identity and the

State failed to prove the defendant was the perpetrator in the extraneous offense. Id. at

364–66. In short, the facts and law involved in McGee are completely inapposite to

Medellin's fifteenth issue.

Rather, we are guided by the well-established law that, at the punishment stage,

a defendant's pleas of true to prior convictions is sufficient evidence to support the

underlying enhancement allegations. See Wilson v. State, 671 S.W.2d 524, 526 (Tex.

Crim. App. 1984); Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App. 1981); Torres

v. State, 391 S.W.3d 179, 184 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) ("Once a

defendant pleads true to the enhancement allegations, the State is relieved of its burden

17 to prove the allegations because a plea of true constitutes evidence and sufficient proof

to support the enhancement allegation." (citations and internal quotations omitted)).

Medellin pleaded true to both alleged prior convictions. He cannot now complain on

appeal that the evidence was insufficient because the issue was resolved by his pleas.

See Harvey, 611 S.W.2d at 111. The trial court committed no error in declining to submit

the issue of Medellin's prior convictions to the jury. We overrule Medellin's fifteenth

issue.

IX. Ineffective Assistance of Counsel

By his sixteenth issue, Medellin argues that defense counsel was ineffective

because he failed to object to the "critically prejudicial" testimony about Medellin's gang

affiliation that was elicited by the State at Medellin's punishment hearing. We disagree—

Medellin cannot show that he was prejudiced by counsel's failure to object because,

ultimately, the complained-of testimony was admissible.

We apply the same two-prong Strickland standard of review for ineffective

assistance of counsel claims in both the guilt/innocence phase of trial and the punishment

phase of trial. Hernandez v. State, 988 S.W.2d 770, 772–74 (Tex. Crim. App. 1999).

First, the appellant must demonstrate counsel's representation fell below an objective

standard of reasonableness under prevailing professional norms. Strickland v.

Washington, 466 U.S. 668, 688 (1984). Second, the appellant must establish counsel's

performance was so prejudicial, it deprived appellant of a fair trial. Id. at 691. To satisfy

this prong, appellant must show that a reasonable probability exists that, but for counsel's

errors, the result of the proceeding would have been different. Id. at 694.

18 The procedures to be followed at the punishment stage of trial and the evidence

that may be considered in determining punishment are the subject of article 37.07 of the

Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 37.07 (West,

Westlaw through 2013 3d C.S.). This statute authorizes the admission of evidence in

the punishment phase of trial as to any matter the court deems relevant to sentencing,

"including but not limited to the prior criminal record of the defendant, his general

reputation, his character, [and] an opinion regarding his character . . . ." Id. art. 37.07 §

3(a)(1). Evidence concerning a defendant's gang membership is relevant character

evidence at the punishment stage so long as the evidence informs the jury of "the types

of activities the gang generally engages in so that they can determine if his gang

membership is a positive or negative aspect of his character." Beasley v. State, 902

S.W.2d 452, 456 (Tex. Crim. App. 1995); see Jessop v. State, 368 S.W.3d 653, 692 (Tex.

App.—Austin 2012, no pet.) ("The court of criminal appeals has recognized that when the

defendant is charged with an act of violence, membership in [a gang] with a reputation

for violent activities is relevant evidence because it relates to his character.") (citation

omitted).

Here, Detective Cline testified that from his conversations with Medellin about his

time in prison and his examination of Medellin's various tattoos, he believed that Medellin

was a member of the Orejones gang, a subset of the Tango Blast gang, which operates

both inside and outside of Texas prisons and jails. Detective Cline testified that the

Orejones gang is primarily known for narcotics trafficking. Detective Cline also testified

that the Orejones gang has been involved in numerous violent confrontations with rival

19 gangs. This testimony was admissible at Medellin's punishment hearing because it

included specific information about the activities of the gang with which Medellin was

affiliated and gave the jury a means by which to assess Medellin's character. See

Beasley, 902 S.W.2d at 456. Thus, even if defense counsel would have objected to the

gang evidence, the trial court would have properly overruled the objection. Medellin

therefore cannot show that but for defense counsel's error, if any, the result of his

punishment hearing would have been different. We overrule Medellin's sixteenth issue.

X. Cumulative Error

By his seventeenth issue, Medellin complains that cumulative error deprived him

of a fair trial. But Medellin provides no applicable authority and no argument in support

of this issue. We therefore conclude that this issue has been inadequately briefed, and

Medellin has waived our review. See TEX. R. APP. P. 38.1(i). Medellin's seventeenth

issue is overruled.

XI. Conclusion

We affirm the judgments of the trial court.

NELDA V. RODRIGUEZ Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 2nd day of April, 2015.

20 NUECES COUNTY COURTHOUSE CHIEF JUSTICE 901 LEOPARD, 10TH FLOOR ROGELIO VALDEZ CORPUS CHRISTI, TEXAS 78401 361-888-0416 (TEL) JUSTICES 361-888-0794 (FAX) NELDA V. RODRIGUEZ DORI CONTRERAS GARZA HIDALGO COUNTY GINA M. BENAVIDES ADMINISTRATION BLDG. GREGORY T. PERKES NORA L. LONGORIA Court of Appeals 100 E. CANO, 5TH FLOOR EDINBURG, TEXAS 78539 956-318-2405 (TEL) CLERK DORIAN E. RAMIREZ Thirteenth District of Texas 956-318-2403 (FAX)

www.txcourts.gov/13thcoa

May 14, 2015

Hon. Sammy M. McCrary Hon. Larry Warner Chief Felony Prosecutor Attorney at Law 150 N. Seguin Ave, Suite 307 3109 Banyan Circle New Braunfels, TX 78130 Harlingen, TX 78550 * DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *

Hon. Jennifer Tharp Hon. Laura Burton Bates District Attorney Assistant Criminal District Attorney 150 N. Seguin, Ste 307 150 N. Seguin Ave., Ste. 307 New Braunfels, TX 78130 Spring Branch, TX 78070 * DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *

Re: Cause No. 13-13-00190-CR Tr.Ct.No. CR-2011-196 Style: ALBERT RODRIGUEZ MEDELLIN v. THE STATE OF TEXAS

Appellant's motion for extension of time to file motion for rehearing and appellant’s motion for extension of time to file motion for rehearing en banc reconsideration in the above cause were this day GRANTED by this Court. The motion for rehearing and motion for rehearing en banc reconsideration have been marked “filed” as of May 4, 2015, their date of receipt.

In addition, appellant’s motion for rehearing and appellant’s motion for rehearing en banc reconsideration were this day DENIED by this Court.

Very truly yours,

Dorian E. Ramirez, Clerk

DER:dot