37 07 2010 931 349 356 1996 951 1997 970 98 102 03 1998 37 07 232 225 228 2007 88 229 233 34 2002 v. << (2011)

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

MEMORANDUM OPINION1

We review a trial court's decision to admit or exclude evidence regarding punishment for an abuse of discretion.   See Mitchell v. State, 931 S.W.2d 950, 953 (Tex.Crim.App.1996);  Ramos v. State, 45 S.W.3d 305, 310 (Tex.App.-Fort Worth 2001, pet. ref'd).   In other words, if the trial court's ruling was at least within the zone of reasonable disagreement, we will not intercede.  Ramos, 45 S.W.3d at 310;  Tow v. State, 953 S.W.2d 546, 548 (Tex.App.-Fort Worth 1997, no pet.).   The abuse of discretion standard applies to questions of relevance.  Jones v. State, 963 S.W.2d 177, 182-83 (Tex.App.-Fort Worth 1998, pet. ref'd) (explaining that “ ‘relevancy’ in the context of a punishment hearing is a normative process to be employed by the fact finder and is not governed by rule [of evidence] 401”);  see also Hayden v. State, 296 S.W.3d 549, 552 (Tex.Crim.App.2009) (“Borrowing

On appeal, appellant contends that Lauderdale's testimony was irrelevant solely because it related to “an assault by [appellant's mother], not [appellant].”   But even if we were to assume that pictures relating to an assault by appellant's mother were not relevant to appellant's punishment, the excerpt quoted above shows that the photographs concerned injuries caused by appellant even if they also displayed injuries caused by his mother.   A defendant's prior bad acts, whether adjudicated or not, are relevant to the jury's punishment decision.⁷  See Tex.Code Crim. Proc. Ann. art. 37.07, § 3(a)(1);  Tow, 953 S.W.2d at 547-48.   Because the record belies appellant's assertion that the objected-to photographs related to bad acts by his mother and not by him, we hold that the trial court did not abuse its discretion by admitting the photographs, and we overrule his second point.

Appellant's gang membership

In his third point, appellant complains about the trial court's admission of evidence concerning his gang membership.   At trial, the State called FWPD Detective Armando Garza to testify as an expert about criminal street gangs and appellant's association with the Truman Street Bloods gang.⁸  Detective Garza said that appellant's chest tattoos included the words “STOP,” “SIX,” and “Truman St.,” which indicated that appellant was a member of the Truman Street Bloods from the Stop Six neighborhood.   Detective Garza also explained that appellant had other tattoos indicating gang membership.   Detective Garza testified that the Truman Street Bloods engaged in murders, aggravated assaults, and narcotics trafficking;  he admitted, however, that he could not testify that appellant engaged in these activities as part of the gang.

Before Detective Garza testified in front of the jury, appellant objected to the testimony on the bases that there was no evidence that appellant was a gang member and that the evidence about his membership was more prejudicial than probative.⁹  On appeal, he argues only that the evidence was more prejudicial than probative under rule of evidence 403 and that the trial court did not “conduct a balancing test” under that rule.   See Tex.R. Evid. 403 (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.”);   see also Vasquez v. State, 67 S.W.3d 229, 240 (Tex.Crim.App.2002) (stating that unfair prejudice occurs when the evidence has an undue tendency to suggest a decision on an improper basis);  Jones v. State, 944 S.W.2d 642, 652 (Tex.Crim.App.1996) (“We have held that Rule 403 requires exclusion of evidence only when there exists a clear disparity between the degree of prejudice of the offered evidence and its probative value.”), cert. denied, 522 U.S. 832 (1997).

We cannot agree with appellant's arguments.   First, we presume that the trial court conducted a rule 403 balancing test, and a silent record does not imply otherwise.  Williams v. State, 958 S.W.2d 186, 195-96 (Tex.Crim.App.1997);  see Rojas v. State, 986 S.W.2d 241, 250 (Tex.Crim.App.1998) (“[W]e have found no error when the judge simply listened to the defendant's objections, then overruled them.”);  Moyer v. State, 948 S.W.2d 525, 531 (Tex.App.-Fort Worth 1997, pet. ref'd) (“The trial court was not required to announce for the record that it has completed the balancing test in its own mind, but we may imply from the record that a proper balancing test was done.”).

Second, appellant's brief does not explain how the gang-related evidence was unfairly prejudicial;  instead, appellant seems to assume that all evidence of gang involvement is highly prejudicial and should be automatically excluded.¹⁰  The court of criminal appeals has upheld the introduction of gang affiliation testimony in the punishment phase of a trial.   See Jones, 944 S.W.2d at 653;  Anderson v. State, 901 S.W.2d 946, 950 (Tex.Crim.App.1995) ( “[G]ang membership is relevant character evidence and therefore admissible.”).   Our court and other intermediate appellate courts have also upheld the admission of such evidence.  Stevenson v. State, 963 S.W.2d 801, 803 (Tex.App.-Fort Worth 1998, pet. ref'd);  see also Garcia v. State, 239 S.W.3d 862, 866-67 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd), cert. denied, 129 S.Ct. 505 (2008);  Aguilar v. State, 29 S.W.3d 268, 270 (Tex.App.-Houston [14th Dist.] 2000, no pet.);  Chimney v. State, 6 S.W.3d 681, 699 (Tex.App.-Waco 1999, pet. ref'd).   Based on this authority, we cannot agree with appellant's contention that Detective Garza's testimony should have been excluded under rule 403 because it pertained to appellant's gang involvement.   In other words, the evidence was not unfairly prejudicial merely because it linked appellant to the Truman Street Bloods gang, which, according to Detective Garza, commits various crimes.   See Beasley v. State, 902 S.W.2d 452, 457 (Tex.Crim.App.1995).   We hold that the trial court did not abuse its discretion by admitting Detective Garza's testimony, and we overrule appellant's third point.

Conclusion

Having overruled all of appellant's points, we affirm the trial court's judgment.

PANEL:  LIVINGSTON, C.J.;   DAUPHINOT and MCCOY, JJ.

Tex.R.App. P. 47.2(b)

DELIVERED:  January 13, 2011

FOOTNOTES

FN1. See Tex.R.App. P. 47.4..  FN1. See Tex.R.App. P. 47.4.

FN3. Aggravated robbery is a first-degree felony that carries a maximum punishment of life in prison.   See Tex. Penal Code Ann. § 12.32(a) (Vernon Supp.2010), § 29.03(b) (Vernon 2003)..  FN3. Aggravated robbery is a first-degree felony that carries a maximum punishment of life in prison.   See Tex. Penal Code Ann. § 12.32(a) (Vernon Supp.2010), § 29.03(b) (Vernon 2003).

FN4. Appellant also pled guilty in front of the jury..  FN4. Appellant also pled guilty in front of the jury.

FN5. Lauderdale also said that months before the robbery at the bank, she learned that Glenn had shot someone at a gas station, and she told appellant about that shooting at that time.   Appellant does not complain about the trial court's admission of this testimony..  FN5. Lauderdale also said that months before the robbery at the bank, she learned that Glenn had shot someone at a gas station, and she told appellant about that shooting at that time.   Appellant does not complain about the trial court's admission of this testimony.

FN6. Lauderdale said that she hit appellant on the leg with a bar during the fight..  FN6. Lauderdale said that she hit appellant on the leg with a bar during the fight.

FN7. Whether an extraneous offense or bad act is established beyond a reasonable doubt is a question of fact for the jury, not a preliminary question of admissibility for the trial court.   See Mitchell, 931 S.W.2d at 953-54;  Nanez v. State, 179 S.W.3d 149, 151-52 (Tex.App.-Amarillo 2005, no pet.).   The jury charge instructed the jury, “You cannot consider the [extraneous crimes or bad acts] testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other acts․”.  FN7. Whether an extraneous offense or bad act is established beyond a reasonable doubt is a question of fact for the jury, not a preliminary question of admissibility for the trial court.   See Mitchell, 931 S.W.2d at 953-54;  Nanez v. State, 179 S.W.3d 149, 151-52 (Tex.App.-Amarillo 2005, no pet.).   The jury charge instructed the jury, “You cannot consider the [extraneous crimes or bad acts] testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other acts․”

FN8. Detective Garza had worked for several years in a gang unit, was assigned to the FBI Violent Gang Task Force, and attended monthly meetings about the trends and patterns of gang activity..  FN8. Detective Garza had worked for several years in a gang unit, was assigned to the FBI Violent Gang Task Force, and attended monthly meetings about the trends and patterns of gang activity.

FN9. Appellant did not object to the introduction of the photographs of his tattoos..  FN9. Appellant did not object to the introduction of the photographs of his tattoos.

FN10. Appellant summarily argues, “Testimony of the Appellant's alleged gang involvement was highly prejudicial․  The Trial Court abused its discretion by allowing the introduction of the gang information into evidence.”.  FN10. Appellant summarily argues, “Testimony of the Appellant's alleged gang involvement was highly prejudicial․  The Trial Court abused its discretion by allowing the introduction of the gang information into evidence.”