Aviles v. State

Full title: AGUSTIN AVILES, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Apr 28, 2008

No. 05-07-00477-CR (Tex. App. Apr. 28, 2008)

Opinion

No. 05-07-00477-CR

Opinion issued April 28, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F06-00601-TK.

Before Justices WHITTINGTON, RICHTER, and MAZZANT.

OPINION

MARK WHITTINGTON, Justice.

Agustin Aviles appeals his conviction for engaging in organized criminal activity. See Tex. Penal Code Ann. § 71.02 (Vernon Supp. 2007). After finding appellant guilty as charged, the jury assessed punishment at fifty years' confinement. In eighteen issues, appellant complains (i) the evidence is legally and factually insufficient to support his conviction, (ii) the indictment fails to allege a felony offense, rendering the punishment void, and (iii) the trial judge erred in admitting certain evidence, allowing the State to introduce extraneous offenses, denying his motion for continuance and his request for certain instructions, and overruling appellant's objection to improper jury argument. We affirm the trial court's judgment.

Legal and Factual Sufficiency of the Evidence

In his seventeenth and eighteenth issues, appellant claims the evidence is legally and factually insufficient to support his conviction. Specifically, appellant argues there was "no showing that Appellant was a member of a gang before or during the commission of the underlying offense of aggravated assault" of fifteen-year-old Jacob Orta. When reviewing sufficiency of the evidence challenges, we employ well-known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garcia v. State, 57 S.W.3d 436, 441 (Tex.Crim.App. 2001). Under a legal sufficiency review, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Rollerson v. State, 227 S.W.3d 718, 724 (Tex.Crim.App. 2007); Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). The jury is the sole judge of the witnesses' credibility and the weight to be given their testimony and, as such, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). In circumstantial evidence cases, it is unnecessary for every fact to point directly and independently to appellant's guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. See Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App. 1993) (citing Russell v. State, 665 S.W.2d 771, 776 (Tex.Crim.App. 1983)). In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of evidence contradicts the jury's verdict. Watson, 204 S.W.3d at 417. We cannot conclude a conviction is "clearly wrong" or "manifestly unjust" simply because we would have voted to acquit. Watson, 204 S.W.3d at 417. The jury is in the best position to evaluate the credibility of the witnesses, and our factual-sufficiency jurisprudence still requires an appellate court to afford "due deference" to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied 128 S.Ct. 87 (2007). Although the reviewing court is permitted "to substitute its judgment for the jury's" when considering credibility and weight determinations, it may do so only "to a very limited degree." Marshall, 210 S.W.3d at 625 (citing Watson, 204 S.W.3d at 417). A person commits the offense of engaging in organized criminal activity if,

with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, he commits or conspires to commit one or more of the following:

murder, capital murder, arson, aggravated robbery, robbery, burglary, theft, aggravated kidnapping, kidnapping, aggravated assault, aggravated sexual assault, sexual assault, forgery, deadly conduct, assault punishable as a Class A misdemeanor, burglary of a motor vehicle, or unauthorized use of a motor vehicle . . .

Tex. Penal Code Ann. § 71.02(a)(1) (emphasis added). A person commits aggravated assault if he commits assault and (i) causes serious bodily injury to another or (ii) uses or exhibits a deadly weapon during the commission of the assault. Tex. Penal Code Ann. § 22.02(a) (Vernon Supp. 2007); Ferrel v. State, 55 S.W.3d 586, 589 (Tex.Crim.App. 2001). A person commits assault if he intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Penal Code Ann. § 22.01(a)(1) (Vernon Supp. 2007). Although appellant claims there is no evidence he was a member of a gang at the time of the offense, after reviewing the entire record, we disagree. At trial, seventeen-year-old Bobby Williams testified he and his older brother, Robert, were friends with Jacob and his older brother, Nicholas. On the evening of May 14, 2005, Jacob and Bobby were at Robert's apartment in Garland. Robert and Nicholas were also at the apartment. Between 11:00 p.m. and midnight, Jacob and Bobby walked to the nearby Fina gas station at Saturn Road and Kingsley Road to get some snacks. When they were walking back, a maroon vehicle, like a Jeep or a truck, drove by. People in the car honked the horn and yelled some words in Spanish. Jacob threw his hands up "like a what's up" but nothing happened. Although he saw the car stop at a red traffic light, Bobby did not notice where it went. When the boys began walking by a church, six or seven men came out from a little alleyway on the side of the church and asked if Bobby and Jacob "were in any gangs or anything." One man had a bat. They then asked Bobby if he "was a Mexican dude who was mixed living in their apartment." When Bobby told them it was not him, because he is "mixed with black and white," the man with the bat swung it and hit Bobby in the elbow. Bobby and Jacob began running in different directions; Bobby ran toward his brother's apartment, but Jacob ran toward the Fina station. That was the last time Bobby saw Jacob. When he got to his brother's apartment, he told Robert and Nicholas that he and Jacob had been jumped. The older boys went to find Jacob. When they returned, they told Bobby that Jacob, who had been beaten and left in the street where he was subsequently run over by a car, was dead. Bobby could not identify any of the men from that night. Lauren McPeak testified she has been appellant's girlfriend for two years. Appellant also goes by the name "Grumpy." In May 2005, she was hanging out with the Brown Pride gang. Although appellant is a member of that gang, she was not dating appellant at that time. On the evening of May 14, 2005, Lauren was out with her girlfriends, Denise Salazar, Jovanna Salazar, and Marisa Cordova, in Marisa's mother's Ford SUV. The girls met up with several members of the Brown Pride at a Fina gas station at Saturn Road and Miller Road, including Daniel Luna, Sergio Valencia, Michael Cruz, Sergio Guerrero, and appellant. Sergio V. drove a red Titan pick-up. When the truck left the Fina station, the girls followed in the Explorer. Lauren initially testified there were seven men in the Titan but later corrected her testimony to reflect that two men, Michael and Sergio G., had gotten in the Explorer with the girls. They saw two boys walking on the street. According to Lauren, the men in the red Titan yelled, "Fuck east side" and "fuck blue" when they went by. The vehicles stopped in a church alley or parking lot where everyone got out of the vehicles and ran out to the street. Three of the men had bats. Lauren dropped her make-up bag and stopped to pick it up. When she looked up, she saw appellant swing a bat and hit Jacob in the back of the head with the bat. The rest of the men were hitting and kicking Jacob who eventually fell to the ground. Then everyone got back in the vehicles and went their separate ways. Lauren admitted she had been drinking alcohol and using marijuana and cocaine that night and did not want to remember that night. Nevertheless, she testified she was "real clear" about seeing appellant with the baseball bat. Denise, who was fourteen years old at the time, testified to similar facts regarding the events of that night. She and her girlfriends met up with some men. Sergio V. said, "Let's go find some East Side Cheese Siders and mess them up." Michael and Sergio G. got in the girls' Explorer, and they followed the men in the red Titan to an alley behind a church. The men waited until the two boys walked by. The men got out, went to the street, and started screaming "F East Side. I know you are East Side." The two boys, who she later learned were Jacob and Bobby, denied they were in a gang. Bobby turned and ran off, followed by Michael and Sergio G. Jacob had five men around him. Appellant had a bat and hit Jacob in the head who then fell to the ground. Daniel also had a bat and was hitting Jacob on his body. The other men punched and kicked him. Michael and Sergio G. returned and told the group, "Y'all took it too far. We've got to go." They stopped kicking and hitting Jacob, and everyone left. Denise testified the men were saying it "is all about Brown Pride" and "Fuck east side." According to Denise, she wanted to go back and help Jacob but she was afraid of the men. Jovanna testified she and the other girls met Michael, Sergio G., Daniel, Sergio V. and appellant who she called Grumpy. The men were members of the Brown Pride. They met at the Fina station at Saturn Road and Miller Road. According to Jovanna, that Fina station is "usually East Side." The girls stopped to use the restroom, and a fight broke out about "gang stuff." They all left and drove to the church where they saw Bobby and Jacob. Jovanna similarly testified the men yelled "Fuck East Side," demanded to know if the boys were members of a gang, and then attacked the two boys. Jovanna testified Daniel and appellant had bats and were hitting Jacob. When appellant hit Jacob, he fell to the ground. The other men were kicking and punching him. Marisa testified she was with Jovanna, Denise, and Lauren on the night of May 14, 2005. Marisa was driving her mother's Ford Explorer when the girls met up with appellant and the others. The men were driving a maroon Titan. The girls followed them, driving by the two boys walking in the street. The vehicles turned into a little alley, and everyone got out. As they approached Bobby and Jacob, the men, including appellant, were "saying all their gang names" closing in on the boys, and swinging their bats. According to Marisa, the men were screaming "Brown Pride," "we're Bloods," and "we are Barrio 13." She saw appellant hit Jacob with the bat. After the men kicked and punched him for about five minutes, they told everyone to get in the trucks and leave. Jacob was not moving or breathing, and blood was coming out of his head and mouth. Marisa later discovered Jacob died. She knew Denise, Jovanna, and Lauren from high school but, shortly after that night, she cut her ties with them. Officer Randall Hawkins of the Garland Police Department testified he had been with the department fifteen years and had been assigned to the gang unit of the police force for twelve years. Officer Hawkins trained as a gang unit officer and had experience dealing with gangs. He testified that, on a daily basis, part of his job is dealing with gangs and gang members. According to Officer Hawkins, Garland had approximately fifty gangs in May 2005. One of the Garland gangs is a predominately Hispanic gang called Brown Pride, Locos 13. Officer Hawkins testified appellant is a member of the Brown Pride, Locos 13. In September 2005, Officer Hawkins and his partner arrested appellant on a murder warrant. After the officers took appellant into custody, appellant acknowledged he was a member of the Brown Pride, Locos 13 and threw the gang hand sign for Officer Hawkins. In court, Officer Hawkins demonstrated the hand sign used by the Brown Pride, Locos 13 gang members. Officer Hawkins testified the Garland Police Department uses a certification system used by the Federal Bureau of Prisons to determine whether an individual is a gang member. The certification system employees ten enumerated factors, assessing points for each factor. When an individual scores ten points, the Garland Police certify an individual as a gang member. These factors include making a statement of gang affiliation, using graffiti, using hand signs, wearing colors, stained clothing, or shaved eyebrows, having known gang associates, having a felony criminal history, committing a violent crime, having a weapons arrest, and having a "brand" name and tattoo. According to Officer Hawkins, appellant scored fourteen points, although he conceded on cross-examination that six of those points were attributable to the arrest in the instant case. Viewed in the light most favorable to the judgment, the evidence shows appellant, known to his friends and acquaintances as Grumpy, was a member of the Brown Pride gang. Appellant, along with other gang members, yelled their gang names, "Fuck East Side," and "Brown Pride" at Jacob and Bobby, then swung bats at them. When Bobby ran away, Michael and Sergio G. chased him. The remaining five men, including appellant, focused on Jacob. Appellant swung a bat at Jacob, causing him to fall to the ground. The men kicked and punched Jacob until he bled from the head and mouth. They then fled the scene. After viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant's conviction for engaging in organized criminal activity by committing, as a member of a street gang, the aggravated assault of Jacob. Furthermore, after reviewing all the evidence in this case, we cannot conclude that the great weight and preponderance of evidence contradicts the jury's implicit finding appellant was a gang member as well as the jury's verdict. Thus, the jury was rationally justified in finding guilt beyond a reasonable doubt. We conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's seventeenth and eighteenth issues.

The Indictment

In his first issue, appellant contends the trial judge "erred in pursuing the trial of this cause as a first degree felony rather than as a state jail felony." Appellant's complaint appears to be that the indictment did not give him sufficient notice he was being charged with a first degree felony and he believed he was being tried for a state jail felony. In his second and third issues, he concludes his conviction for a first degree felony was void and the trial judge erred in denying his motion for a continuance because he was not aware he was being tried for a first degree felony. We disagree with each of appellant's contentions. As noted previously, a person commits the offense of engaging in organized criminal activity if "as a member of a criminal street gang, he commits or conspires to commit . . . aggravated assault." Tex. Penal Code Ann. § 71.02(a)(1). Except in certain circumstances not applicable to this case, an offense under section 71.02 "is one category higher than the most serious offense listed in Subsection (a) that was committed . . . except that if the most serious offense is a felony of the first degree, the offense is a felony of the first degree." Tex. Penal Code Ann. § 71.02(b). A person commits aggravated assault if he intentionally, knowingly, or recklessly causes bodily injury to another and uses or exhibits a deadly weapon during the commission of the assault. Tex. Penal Code Ann. §§ 22.01(a)(1), 22.02(a); Ferrel, 55 S.W.3d at 589. Aggravated assault is a second-degree felony. Tex. Penal Code Ann. § 22.02(b). The indictment in this case alleged appellant

then and there intentionally, knowingly, and recklessly, as a member of a criminal street gang, commit aggravated assault by causing bodily injury to JACOB ORTA, hereinafter called complainant, by striking complainant with a bat, a deadly weapon, a hand, a deadly weapon, and a foot, a deadly weapon.

Although appellant claims this was inadequate to allege aggravated assault because the indictment does not contain the words "use or exhibit," we cannot agree. Article 21.17 of the Texas Code of Criminal Procedure provides "[w]ords used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which includes the sense of the statutory words." Tex. Code Crim. Proc. Ann. art. 21.17 (Vernon 1989). Alleging appellant assaulted Jacob "by striking [him] with a bat, a deadly weapon, a hand, a deadly weapon, and a foot, a deadly weapon" conveys the same meaning as alleging appellant assaulted Jacob by "using" a bat, a deadly weapon, a hand, a deadly weapon, and a foot, a deadly weapon. See McElroy v. State, 528 S.W.2d 831, 833 (Tex. Crim App. 1975) (holding indictment that alleged defendant used "a deadly weapon, to-wit: a knife" and caused complainant bodily injury "by cutting him with said knife" sufficiently tracked statutory language and was sufficient to describe aggravated assault). Because the indictment sufficiently alleged appellant engaged in organized criminal activity by committing aggravated assault, appellant had sufficient notice he was being charged with a first degree felony. See Tex. Penal Code Ann. §§ 22.02(b), 71.02(b). Because appellant's second and third issues are predicated on our finding to the contrary, it follows that we need not address either of these two issues. We overrule appellant's first three issues.

Admission of Evidence

In his fourth through eighth issues, appellant complains of the introduction of certain evidence. In his fourth issue, he claims the trial judge erred in overruling his objection to the testimony of Officer Hawkins. The entire argument under his fourth issue is

The trial court overruled Appellant's objection to this form of testimony from this witness and allowed the witness to give expert opinion. A review of the predicate evidence presented by the State failed to qualify witness, Hawkins, as an expert witness pursuant to Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App. 1992). The evidence proffered by this witness did not and the time of the proffer would not aid the jury in finding a relevant fact. Additionally, general evidence may not be offered to show that a defendant acted in conformity therewith. See Brewington v. State, 802 S.W.2d 691 (Tex.Crim.App. 1991) and Holloway v. State, 613 S.W.2d 497 (Tex.Crim.App. 1981).

Appellant refers to the test enunciated in Kelly, but does not discuss how Officer Hawkins's testimony was "novel scientific evidence." He does not discuss what the "predicate" is for admitting expert testimony, nor does he argue how the State failed to meet the predicate. He provides no discussion of the facts of this case and no application of law to the facts. Nor does he provide a clear and concise argument for the contentions he makes with appropriate citation to the record. See Tex. R. App. P. 38.1(h); Swearingen v. State, 101 S.W.3d 89, 100 (Tex.Crim.App. 2003) (concluding appellant failed to adequately brief issue when he failed to apply law to facts of case as required under appellate rules). Because appellant has failed to adequately brief this issue, we do not reach the merits of his complaint. We overrule appellant's fourth issue. In his fifth and sixth issues, appellant complains of the admission of extraneous offense evidence. Under his fifth issue, appellant claims the trial judge erred in overruling appellant's objection to the admission of extraneous offense evidence because "prior reasonable notice to introduce such evidence was not given to defense counsel." Under his sixth issue, appellant claims the trial judge erred in denying appellant a hearing on the issue of whether the extraneous offense evidence would be admissible. Our review of the record shows the State provided its notice of extraneous offenses to defense counsel on February 23, 2007, and trial began March 5, 2007. Appellant does not argue the notice was unreasonable because it failed to give him sufficient time to prepare nor does he allege on appeal that the information in the notice was incomplete or insufficient. Rather, he states notice was not given. Because the record shows appellant received notice of the State's intent to introduce extraneous offense evidence, we overrule his fifth issue. In light of our disposition of issue five, we need not address appellant's sixth issue. We overrule issue six. In his seventh and eighth issues, appellant complains of the trial judge's ruling admitting four photographs depicting the crime scene and eleven autopsy photographs depicting the injuries to Jacob's body. Under these two issues, appellant claims the photographs are highly prejudicial and any probative value they have is outweighed by their prejudicial effect. Although the photographs are graphic, we cannot agree they are so prejudicial as to warrant exclusion. The admissibility of a photograph lies within the sound discretion of the trial judge. Shuffield v. State, 189 S.W.3d 782, 787 (Tex.Crim.App.), cert. denied 127 S. Ct. 664 (2006); Paredes v. State, 129 S.W.3d 530, 539 (Tex.Crim.App. 2004). As a general rule, a photograph is admissible if verbal testimony regarding what is depicted in the photographs is also admissible and the probative value of the photograph is not substantially outweighed by any of the rule 403 counter-factors. Threadgill v. State, 146 S.W.3d 654, 671 (Tex.Crim.App. 2004); Williams v. State, 958 S.W.2d 186, 195 (Tex.Crim.App. 1997); Long v. State, 823 S.W.2d 259, 271 n. 18 (Tex.Crim.App. 1991). Rule 403 of the rules of evidence favors the admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial. Shuffield, 189 S.W.3d at 787; Long, 823 S.W.2d at 271. An abuse of discretion arises only when the probative value of the photographs is small and its inflammatory potential is great. Long, 823 S.W.2 at 271. In determining whether the trial judge erred in admitting a certain photograph, we first consider the form, content, and context of the photograph. Erazo v. State, 144 S.W.3d 487, 492 (Tex.Crim.App. 2004); Long, 823 S.W.2 at 271-73 (holding reviewing court should consider number of exhibits offered; gruesomeness, detail, and size of photographs; whether photographs are black and white or in color; whether they are close-up; whether body is naked or clothed; and availability of other means of proof and circumstances unique to each individual case). We then consider (i) the probative value of the evidence, (ii) the ability of the photograph to impress the jury in some irrational yet indelible way; (iii) the time needed to develop the evidence; and (iv) the proponent's need for the evidence. Shuffield, 189 S.W.3d at 787; Erazo, 144 S.W.3d at 492-96. Although appellant contends the photographs should not have been admitted because their probative value was outweighed by its prejudicial effect, we disagree. State's exhibits 10, 12, 13, and 15 are 8" x 10" color photographs depicting the crime scene. Officer Debbie Blum of the Garland Police Department forensics unit testified she photographed and videotaped the scene. She described the section of the street where the body was found as well as the condition of the body. Photograph 10 shows the location of the body in the street; Jacob's body is covered with a white sheet. Photographs 12 and 13 show a section of the street the street with blood, tire tracks, and a portion of brain matter. Photograph 15 shows Jacob's body without the white sheet. Before Officer Blum testified, Officer B. St. Clair testified he responded to the call about an "accident with a male lying in the roadway." Officer St. Clair testified about the location and condition of Jacob's body. Photographs 10, 12, 13, and 15 were probative of the crime scene and the injuries Jacob received in spite of the fact his body was later hit by a car. As such, they were necessary for the State to develop its case. Although the photographs are explicit, when considered in light of the crime, they are not overly gruesome nor did they pose a danger of influencing the jury in an irrational way. We conclude the trial judge did not err in admitting State's exhibits 10, 12, 13, and 15. Dr. Lynn Salzberger, a medical examiner at the Southwestern Institute of Forensic Sciences, testified she performed Jacob's autopsy. In conjunction with her exam, she took numerous photographs to document her findings including State's exhibits 33-43. The 8" x 12" color autopsy photographs were taken after Jacob's body had been cleaned and show the injuries he received. Of the eleven photographs, two show the injuries to Jacob's head and shoulders and are graphic. The remaining nine photographs depict the injuries-abrasions, bruises, and scrapes-to the rest of Jacob's body and are not gruesome. Dr. Salzberger testified, without objection, about the extent and degree of the injuries Jacob received., including that he suffered an "incredibly severe head injury" in which the "entire top of the head was split open" and the brain "expelled out of the head." These photographs, along with Dr. Salzberger's testimony, were probative of the extent of Jacob's injuries and the manner in which those injuries were incurred. Thus, they were necessary for the State to develop its case. Dr. Salzberger's testimony was concise, and her time testifying was relatively short. Although photographs 33 and 34 are gruesome, they were no more gruesome than the facts of Jacob's beating. When considered in light of the facts of this case, the autopsy photographs are not overly prejudicial and did not pose a danger of influencing the jury in an irrational way. See Shuffield, 189 S.W.3d at 788 (photographs show only injuries victim received and are no more gruesome than would be expected); Sosa v. State, 230 S.W.3d 192, 196 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd) (concluding prejudice caused by photographs did not substantially outweighed by their probative value; photographs no more gruesome than facts of offense itself, citing Sonnier v. State, 913 S.W.2d 511, 519 (Tex.Crim.App. 1995)); see also Madden v. State, 799 S.W.2d 683, 697 (Tex.Crim.App. 1990) (photograph showing victim's body is admissible to clarify and support observations and conclusions about victim's injuries). We cannot conclude the trial judge abused his discretion in admitting these photographs. We overrule appellant's seventh and eighth issues.

Exculpatory Evidence

In his ninth and tenth issues, appellant complains the State failed to produce "certain potential exculpatory evidence." For the reasons that follow, we reject his complaints. In his ninth issue, appellant claims the trial judge erred in denying appellant's motion for continuance to examine possible exculpatory evidence. On appeal, appellant complains specifically about (i) a tape recording of a conversation appellant had while in jail and (ii) several witnesses that "were eye witnesses whose identities needed to be further pursued to fully investigate any other possible 'Brady Material.'" Regarding the "eye witnesses" he needed to investigate, appellant argues he needed to investigate the woman who made the initial 911 call and another individual who later called 911 to report Jacob's body in the road. The record shows the police report containing this information was previously given to appellant. With respect to the taped conversation, the trial judge granted appellant a four-day continuance to have the conversation translated (from Spanish into English) and transcribed. When court reconvened the following Monday, appellant's counsel indicated the translation/transcription was not complete. The trial judge granted appellant's motion for continuance with respect to the translation/transcription but denied it in all other respects. Although appellant now contends he did not receive potentially exculpatory evidence, the record shows, contrary to appellant's claims, the State did not fail to previously disclose information on the 911 callers and that, with respect to the translation/transcription, appellant requested and received a continuance to obtain that information. Because appellant got the information and relief he was entitled to, we conclude his complaint lacks merit. Under his tenth issue, he contends the trial judge erred in denying his motion for mistrial "because the trial court would not grant appellant's motion for continuance." Having concluded appellant received the information he requested as well as a continuance, we conclude there was no basis for granting a mistrial. Thus, the trial judge could not have erred in denying the motion for mistrial. We overrule appellant's tenth issue.

Accomplice Witness Instruction

In his eleventh and twelfth issues, appellant claims the trial judge erred in denying his requested accomplice witness instructions. Under these issues, appellant claims Marisa, Lauren, Jovanna, and Denise were accomplices as a matter of law and the latter three were accomplices as a matter of fact. Rule 38 of the rules of appellate procedure provides that a brief to the court of appeals shall contain, among other things, a concise, nonargumentative statement of the facts of the case, supported by record references, and a clear and concise argument for the contentions made, with appropriate citations to authorities and the record. Tex. R. App. P. 38.1(f), (h); see Swearingen, 101 S.W.3d at 100 (appellant failed to adequately brief issue when he failed to apply law to facts of case); Rhoades v. State, 934 S.W.2d 113, 119 (Tex.Crim.App. 1996) (interpreting former rule 74). The failure to adequately brief an issue, either by failing to specifically argue and analyze one's position or provide authorities and record citations, waives any error on appeal. See Jensen v. State, 66 S.W.3d 528, 545 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) ("Because appellant's argument on this point of error contains no citations to the record, he has waived appellate review of his complaint."); Huerta v. State, 933 S.W.2d 648, 650 (Tex.App.-San Antonio 1996, no pet.) (appellant must direct court to specific portion of record supporting complained of error). Under his discussion of accomplices as a matter of law, appellant cites two cases in support of his argument. Neither case sets forth an analysis of the law or discusses when a trial judge has a duty to instruct that a witness is an accomplice as a matter of law. Appellant does not explain how the four girls could be prosecuted for the charged offense or discuss what they did to participate in the offense. With respect to his accomplices as a matter of fact argument, appellant again fails to properly brief his contention. He provides no analysis of the law, does not discuss how the facts of this case mandate such an instruction, nor does he provide any citation to the record. Under these circumstances, we decline to make appellant's argument for him. Having been shown no authority, analysis, or argument, we conclude appellant has waived these two issues. See Tex. R. App. P. 38.1(h). We overrule appellant's eleventh and twelfth issues.

Lesser Included Offense

In his thirteenth and fourteenth issues, appellant claims the trial judge erred in denying his request to charge the jury on the lesser included offenses of (i) engaging in organized criminal activity by acting as a member of a criminal street gang and committing or conspiring to commit assault and (ii) assault. Under these issues, appellant argues he was entitled to said instructions because the medical examiner did not testify the assault was aggravated. If a defendant requests a lesser included offense instruction, it shall be included in the jury charge if (i) the requested charge is for a lesser included offense of the charged offense and (ii) there is some evidence that, if the defendant is guilty, he is guilty only of the lesser offense. Hayward v. State, 158 S.W.3d 476, 478 (Tex.Crim.App. 2005). In his brief, appellant does not analyze and compare the elements of the charged offense (before any evidence was offered at trial) with the elements of the two lesser offenses he claims should have been added to the jury charge. Guzman v. State, 188 S.W.3d 185, 188 (Tex.Crim.App. 2006); Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006). Because appellant has failed to adequately brief this issue, we do not reach the merits of his complaint. See Tex. R. App. P. 38.1(h); Swearingen, 101 S.W.3d at 100. Even were we to assume the two requested offenses were lesser included offenses, appellant also fails to establish he was entitled to the instructions under the second prong of our analysis. In support of his entitlement under the second prong, appellant argues only that "a review of the testimony of the medical examiner reveals that she never characterized the assault as aggravated." The record shows the medical examiner testified (i) a bat, a hand, and a foot can each be used as a deadly weapon, (ii) Jacob died as a result of blunt force injuries, (iii) although she could not determine whether he died as a result of being beaten or as a direct result of being run over, she knew that before he was run over, "for sure . . . he was hit with some sort of object like a bat or a pipe," and (iv) the only medical conclusions she could draw from the autopsy were that Jacob's death was a homicide, there was an assault, and he died from blunt force injuries. Although the medical examiner did not explicitly state "aggravated assault," her testimony, when taken together, established the assault was aggravated. Furthermore, the evidence shows each eye witness to the attack testified appellant hit Jacob in the head with a baseball bat. In light of this, we cannot conclude the trial judge erred in denying his requested instructions. We overrule appellant's thirteenth and fourteenth issues.

Objection to Jury Argument

In his fifteenth and sixteenth issues, appellant contends the trial judge erred in overruling his objections to jury argument. Under each issue, appellant claims the prosecutor's comments improperly commented on appellant's decision not to testify. The approved general areas of argument are summation of the evidence, reasonable deduction from the evidence, answer to argument of opposing counsel, and plea for law enforcement. Wesbrook, 29 S.W.3d at 115. The prosecutor cannot comment on the failure of an accused to testify. Bustamante v. State, 48 S.W.3d 761, 764 (Tex.Crim.App. 2001). To determine whether a defendant's right against self-incrimination has been violated, we view the offending language from the jury's standpoint. Bustamante, 48 S.W.3d at 764. The implication that the comment referred to the defendant's failure to testify must be clear. Wead v. State, 129 S.W.3d 126, 130 (Tex.Crim.App. 2004). It is not sufficient that the language might be construed as an implied or indirect allusion; rather, the test is whether the language used was manifestly intended or of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify. Wead, 129 S.W.3d at 130. In applying this standard, we analyze the context in which the comment was made to determine whether the language used was of such character. Bustamante, 48 S.W.3d at 765. During closing argument, the following occurred: [Prosecutor:]

Like the Judge told you, they don't have to put up a defense, When he gets up here and starts arguing to you, it is determined through his cross-examination questions what is he going to argue. One, his client wasn't there. That means that all four of the girls were wrong, or two, he was there, and through that question of his that maybe he just fell down and wasn't involved, didn't do anything or that he was there. I mean you actually have a right to wonder which defense is it going to be because the truth of the matter is —

[Defense:]

Your Honor, I'm going to object at this time. This is commenting on potentially my client's right not to testify.

The trial judge disagreed and overruled the objection. Although appellant now assigns this ruling as error, we disagree. The prosecutor's conjecture at possible defenses was a reasonable deduction from the evidence. Therefore, the trial judge did not err in overruling appellant's objection. See Berry v. State, 233 S.W.3d 847, 860 (Tex.Crim.App. 2007) (holding prosecutor's argument about possible defensive theory was reasonable deduction from evidence). We overrule appellant's fifteenth issue. In his sixteenth issue, appellant complains of additional jury argument during punishment: [Prosecutor:]

He wants to say about remorse. Well, from May until September when the defendant is arrested, there's a time to be remorseful there too when [defense counsel] didn't talk to him and say don't talk about your case with anyone at that point.

[Defense:]

I'm going to object. That's improper argument. It goes to his right not to testify.

The trial judge overruled appellant's objection and, on appeal, appellant claims the trial judge erred and we must reverse this cause. Prior to the prosecutor's argument, defense counsel argued: [Defense:]

You don't think he is paying for that now? You know, they are going to beat up on him for remorse and things like that. Take that out on me because you heard from the stand that I, as the defense attorney, instructed him not to talk with anybody about this case. That's my job as his attorney to do what I needed to do in this case. Don't take that out on him when they get up here and say that he is not remorseful. You don't know that. You've seen [him] over here. It is not like he has been standing up, you know, laughing or anything like that. He has been very serious about that. That goes to something. You can tell things from his demeanor here in court. You're allowed to look at that.

The prosecutor's statements were in direct response to defense counsel's previous argument. Furthermore, at least one witness testified appellant had not shown remorse for the assault. After considering the facts, circumstances of the case, and the context of the jury argument in question to determine whether the character of the prosecutor's language was such that the jury would naturally and necessarily take it to be a comment on the defendant's failure to testify, we conclude it did not. Cf. Howard v. State, 153 S.W.3d 382, 386 (Tex.Crim.App. 2004) (prosecutor's argument about lack of remorse proper summation of evidence when witness testified appellant told him he had no remorse), cert. denied 546 U.S. 1214 (2006); see also Searcy v. State, 231 S.W.3d 539, 549 (Tex.App.-Texarkana 2007, pet. ref'd) (in light of evidence in record indicating lack of remorse, prosecutor's statement about same did not naturally and necessarily lead jury to understand it as comment on defendant's failure to testify). We overrule appellant's sixteenth issue. We affirm the trial court's judgment.