PD-0414-15 PD-0414-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 4/14/2015 9:50:04 AM Accepted 4/15/2015 5:21:08 PM ABEL ACOSTA CLERK PD-___________
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
MICHAEL ANDRADA, PETITIONER
v.
THE STATE OF TEXAS
**********
Petition in Cause No. 2012-436,468, from the 137th District Court of Lubbock County, Texas, Hon. John J. McClendon III presiding and Cause No. 07-13-00278-CR in the Court of Appeals for the Seventh Supreme Judicial District of Texas
PETITION FOR DISCRETIONARY REVIEW
David Crook, Crook & Jordan Attorneys-at-Law PO Box 94590 (806) 744-2082 (806) 744-2083 Fax dcrook@nts-online.net
Attorney for the Petitioner, MICHAEL ANDRADA
April 15, 2015 IDENTITY OF JUDGE, PARTIES, AND COUNSEL (RULE 68.4(a), TEX. R. APP. PROC.)
A complete list of all parties to the trial court’s judgment or order appealed from, and the names and addresses of all trial and appellate counsel includes:
MICHAEL ANDRADA, Petitioner TDCJ#1885819 Clements Unit 9601 Spur 591 Amarillo, TX 79107
THE STATE OF TEXAS, Respondent
FOR THE PETITIONER: FOR THE STATE OF TEXAS:
DAVID CROOK, Crook & Jordan MR. JEFF FORD PO Box 94590 ATTORNEY FOR THE Lubbock, Texas 79493 STATE OF TEXAS (806)744-2082 Office of the District Attorney (806) 744-2083 (fax) Lubbock County State Bar No. 05109530 PO Box 10536 Attorney for the Petitioner Lubbock, TX 79408-3536 (806) 775-1100 TRIAL COURT JUDGE: (806) 775-1154 (fax)
Hon. John J. McClendon, III Hon. LISA McMINN Lubbock County Courthouse State Prosecuting Attorney 904 Broadway PO Box 12405 137th District Court, Lubbock County Austin, TX 78711 PO Box 10536 (512) 463-1660 Lubbock, TX 79408-3536 (512) 463-5724 (fax) (806) 775-1022 (806) 767-9656 (fax)
2 TABLE OF CONTENTS (RULE 68.4(a), TEX. R. APP. PROC.)
PAGE
PARTIES ………………………………………………………...………………………………2
TABLE OF CONTENTS …………………………………………………………………….......3
INDEX OF AUTHORITIES ……………………………………………………………………..4
STATEMENT REGARDING ORAL ARGUMENT ……………………………………………6
STATEMENT OF THE CASE …………………………………………………………………..6
STATEMENT OF PROCEDURAL HISTORY ………………………………………..…..........7
PETITIONER’S GROUNDS FOR REVIEW ………………………………………………........8
THE APPELLATE COURT ERRED BY FINDING THAT THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ALLOWING TESTIMONY OF PETITIONER’S PURPORTED GANG MEMBERSHIP INTO EVIDENCE IN SENTENCING PHASE, WHERE THE PROFFERED TESTIMONY WAS NOT SHOWN TO BE RELIABLE.
REASONS FOR REVIEW ……………………………………………………..………………...8
THE DECISION OF THE COURT OF APPEALS CONFLICTS WITH THE APPLICABLE DECISIONS OF THE COURT OF CRIMINAL APPEALS.
ARGUMENT …………………………………………………...…………...................................9
CONCLUSION AND PRAYER …………………………………………………...…………...12
CERTIFICATE OF COMPLIANCE…………………………………………………………….12
CERTIFICATE OF SERVICE ………………………………………………………………….12
APPENDIX …………………………………………………………………………………......14
3 INDEX OF AUTHORITIES (RULE 68.4(b), TEX. R. APP. PROC.)
Case Law, Federal
United States v. Padilla, 387 F.3d 1087 (9th Cir. 2004)…………………………………….11
State Statutory Law
TEX R. EVID. 702…………………………………………………………………………...8
Case Law, State
Hartman v. State, 946 S.W.2d 60 (Tex. Crim. App. 1997)…………………………………11
Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992)……………………………………11
Lasalle Pipeline, LP. V. Donnell Lands, L.P. (Tex. App.—San Antonio 2011, pet. den.)….9
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)……………………….9
Morris v. State, 361 S.W.3d 649, 656 (Tex. Crim. App. 2011)…………………………….11
Ortiz v. State, 93 S.W.3d 79, 86 (Tex. Crim. App. 2002)…………………………………..11
Rayon v. State, 121 S.W.3d 7, 20 (Tex. App.—Fort Worth 2002)…………………………..9
Sexton v. State, 93 S.W.3d 96, 101 (Tex. Crim. App. 2002)………………………………..11
Vela v. State, 209 S.W.3d 128, 130 (Tex. Crim. App. 2006)……………………………….11
Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000)………………………….9
4 PD-_______
Petition in Cause No. 2012-436,468, from the 137th District Court of Lubbock County, Texas, Hon. John J. McClendon presiding and Cause No. 07-13-00278-CR in the Court of Appeals for the Seventh Supreme Judicial District of Texas
David Crook, Crook & Jordan Attorneys-at-Law PO Box 94590 (806) 744-2082 (806) 744-2083 Fax
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW MICHAEL ANDRADA, Petitioner, by and through his attorney of
record, DAVID CROOK, and petitions the Court of Criminal Appeals of Texas to exercise its
discretionary jurisdiction to review the judgment of the Court of Appeals for the Seventh District
5 of Texas, Amarillo, Texas. In support of this Petition, he would show this Honorable Court as
follows. STATEMENT REGARDING ORAL ARGUMENT (RULE 68.4(c), TEX. R. APP. PROC.)
The grounds for review set forth in this petition concern the failure of the court of appeals
to follow binding precedent; oral argument would be helpful to the Court in distinguishing the
factual background of the case as shown in the record inasmuch as the facts of the case play an
important role in defining the implications of Petitioner’s argument.
STATEMENT OF THE CASE (RULE 68.4(d), TEX. R. APP. PROC.)
On October 30, 2012, Petitioner was charged in a two-count indictment. In Count 1 he
was charged under Health & Safety Code § 481.112(d) with Possession with Intent to Deliver a
Controlled Substance, Methamphetamine, in an amount between 4 and 200 grams (CR p. 7).
The count contained a Drug Free Zone allegation under Health and Safety Code § 481.134, the
premises alleged being a school, Cavazos Middle School. In Count 2 Petitioner was charged
with Unlawful Possession of Firearm under Penal Code § 46.04(a)(1).
A non-evidentiary pretrial hearing was held in the case on April 26, 2013 (Reporter’s
Record [“RR”] v. 2). Petitioner’s jury trial on guilt-innocence commenced on July 29, 2013 in
the 137th District Court, Hon. John J McClendon presiding. He was convicted on July 31, 2013
(RR v. 6, p. 58). Sentencing proceedings took before the jury on the same day. The jury
sentenced Petitioner to life imprisonment in the Texas Department of Criminal Justice,
Institutional Division (RR v. 6, p. 151, CR pp. 62-65). The Court sentenced Appellant
accordingly.
Petitioner perfected appeal on August 1, 2013 (CR p. 80).
6 STATEMENT OF PROCEDURAL HISTORY (RULE 68.4(e), TEX. R. APP. PROC.)
The Seventh Court of Appeals rendered its decision affirming petitioner’s conviction on
March 16, 2015. No motion for rehearing was filed by Petitioner. This petition was then timely
filed.
GROUNDS FOR REVIEW:
THE APPELLATE COURT ERRED BY FINDING THAT THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ALLOWING TESTIMONY OF PETITIONER’S PURPORTED GANG MEMBERSHIP INTO EVIDENCE IN SENTENCING PHASE, WHERE THE PROFFERED TESTIMONY WAS NOT SHOWN TO BE RELIABLE.
REASONS FOR REVIEW:
THE DECISION OF THE COURT OF APPEALS CONFLICTS WITH THE APPLICABLE DECISIONS OF THE COURT OF CRIMINAL APPEALS.
7 ARGUMENT
GROUNDS FOR REVIEW: THE APPELLATE COURT ERRED BY FINDING THAT THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ALLOWING TESTIMONY OF PETITIONER’S PURPORTED GANG MEMBERSHIP INTO EVIDENCE IN SENTENCING PHASE, WHERE THE PROFFERED TESTIMONY WAS NOT SHOWN TO BE RELIABLE.
The Record
Petitioner’s grounds herein are based on a claim that the evidence the State proffered at
trial of his gang membership was not sufficiently reliable under the requirements of T.R.E. 702
to pass evidentiary muster.
Before trial, Petitioner filed his Motion for Rule 702 Hearing Re State’s Gang Testimony.
The Court held a relatively long 702 hearing out of the presence of the jury during trial with
testimony from its proffered expert, Billy Koontz of LSO (RR v. 6, pp. 66-94). After hearing the
testimony, the Court overruled Petitioner’s 702 objection to Koontz’s testimony as an expert to
the effect that Appellant was a gang member. Petitioner objected, inter alia, on 702 reliability
grounds. The Court overruled all objections (RR v. 6, pp. 97-99). Petitioner got a running
objection to all gang testimony, Q&A, etc., out of the presence of the jury.
Before the jury, Koontz testified that in his opinion Petitioner was a member of the North
Side Locos and the West Texas Tango gangs.
T.R.E. 702 and the Requirement of Reliability; Standard of Review
T.R.E. 702 governs the admission of expert testimony. TEX. R. EVID. 702. The
proponent of scientific or technical evidence must show by clear and convincing proof that the
proffered evidence is sufficiently relevant and reliable to assist a fact-finder in understanding the
evidence.
Expert testimony must be based on a reliable foundation to be admissible. The evidence
must have a reliable basis in the knowledge and experience of the discipline. Expert testimony is
8 unreliable and thus inadmissible if it is no more than subjective belief or unsupported
speculation. “Expert” testimony that is conclusory or speculative is not admissible. Lasalle
Pipeline, LP. V. Donnell Lands, L.P. (Tex. App.—San Antonio 2011, pet. den.). A trial court
should not consider “expert” opinion based on the assumption of unproven facts. Rayon v. State,
121 S.W.3d 7, 20 (Tex. App.—Fort Worth 2002).
At a 702 hearing, the trial court is the sole judge of the weight and credibility of the
evidence present, and the court’s ruling on admissibility is reviewed for abuse of discretion.
Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). The reviewing court
considers the trial court’s ruling on the admissibility of scientific evidence in the light of the
evidence presented at the time of the trial court’s ruling. Id. at 542. The reviewing court must
uphold the trial court’s ruling on the admissibility of scientific evidence if it was within the zone
of reasonable disagreement and considers whether the trial court acted without reference to
guiding rules or principles or whether the trial court acted arbitrarily or unreasonably in so
acting. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
Basis of Testimony for the Expert’s Opinion at Trial
Billy Koontz, the State’s purported gang expert at trial, had from his own testimony never
worked as a gang coordinator, and did not know which numbered region Lubbock pertained to
with regard to gangs. The only document that Koontz had purporting to show Petitioner’s gang
membership was one he had prepared for the instant case (RR v. 6, p. 72). Koontz did not have
anything coming from the Texas Violent Gang Task Force showing Petitioner to be a gang
member (RR v. 6, p. 73). Koontz knew nothing of the availability of a judicial proceeding for
the purpose of contesting being identified as a gang member (RR v. 6, p. 75). Koontz was
unaware of and did not possess any judgment showing that Petitioner had ever been judicially
9 adjudicated to be a member of a gang (RR v. 6, pp. 76-77). Koontz was unaware of any self-
admission of gang membership on Petitioner’s part (RR v. 6, p. 77). Koontz had no documents
claiming to identify Petitioner as a gang member on the basis of information from a “reliable
informant,” (RR v. 6, p. 77). Koontz had no corroborated identification of Petitioner as a gang
member by an individual of unknown reliability (RR v. 6, p. 77).
Koontz admitted that he had no photographs (?) of tattoos of known West Texas Gang
members “in the file” (RR v. 6, p. 74). Therefore, he had immediate or direct basis of
comparison in terms of photos of known West Texas gang members to compare with any of
Petitioner’s tattoos (RR v. 6, pp. 74-75). Koontz also claimed that Petitioner associated with
known criminal gang members due to some inconclusive Facebook photos that also showed
many other individuals Koontz never claimed gang membership for (RR v. 6, pp. 77-78).
Koontz claimed that Petitioner sported “gang colors,” but this was based on one photo of
him wearing an unmarked red T-shirt (RR v. 6, p. 82). Koontz said that Petitioner had “2320”
tattooed on his arm, supposedly referring to the 23rd and 20th letters of the alphabet, those being
“W” and “T,” and referring to the West Texas gang (RR v. 6, p. 89). Koontz said again that he
did not have any photos in his immediate possession to prove his point about any gang tattoos or
symbols (RR v. 6, pp. 85-86). When asked which if any tattoos referred to the North Side Locos
gang, Koontz gave an answer with little semantic content (RR v. 6, p. 89). When cross-
examined about North Side Locos tattoos, Koontz said he “believed” that Petitioner had a tattoo
that said “North, or something” (RR v. 6, p. 91).
On redirect, the State made it clear that Petitioner, despite a previous prison stint, was not
confirmed in TDCJ as a gang member (RR v. 6, p. 94). Koontz nevertheless opined that
Petitioner was both a North Side Loco and a West Texas Tango member (RR v. 6, p. 96).
10 Did the Court of Appeals Err in Holding that the Trial Court Properly Allowed the Gang Testimony Into Evidence?
Reliability is one of at least three basic required attributes of scientific or technical
evidence, along with the qualifications of the expert and the proffered testimony’s relevance.
Reliability depends on whether the evidence has its basis in a sound methodology. This requires
a “certain technical showing.” Vela v. State, 209 S.W.3d 128, 130 (Tex. Crim. App. 2006).
In a given instance, the “underlying theory” of an area of inquiry may be reliable, but the State
may fail at trial to produce evidence of the reliability of the technique used. Sexton v. State, 93
S.W.3d 96, 101 (Tex. Crim. App. 2002).
The Court of Appeals, in affirming the conviction and sentence, cited several cases holding
that the issue of “gang behavior” is a proper subject of expert testimony. See Morris v. State,
361 S.W.3d 649, 656 (Tex. Crim. App. 2011), Ortiz v. State, 93 S.W.3d 79, 86 (Tex. Crim. App.
2002), and United States v. Padilla, 387 F.3d 1087 (9th Cir. 2004) [Opinion of the Court of
Appeals, p. 11]. None of the foregoing cases permitted testimony of gang membership on
anything like the sketchy basis shown here.
Petitioner avers that the State was allowed to present purported expert testimony of
Petitioner’s supposed gang affiliations without a proper showing of reliability as to that
testimony. The Texas Court of Criminal Appeals has interpreted Rule 702 of the Texas Rules of
Evidence to require a showing that any scientific or technical evidence is both relevant and
reliable. See Hartman v. State, 946 S.W.2d 60 (Tex. Crim. App. 1997), Kelly v. State, 824
S.W.2d 568 (Tex. Crim. App. 1992), along with Vela, supra. In upholding the Trial Court’s
actions by affirming the case, Petitioner respectfully submits that the Court of Appeals failed to
follow binding precedent.
11 CONCLUSION AND PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Petitioner MICHAEL ANDRADA, prays
that the Court of Criminal Appeals grant his Petition for Discretionary Review, and that after
submission, this Court reverse the decision of the Court of Appeals and remand the Cause for
new sentencing proceedings.
Respectfully submitted,
David Crook Crook & Jordan Attorney-at-law PO Box 94590 Lubbock, Texas 79493 (806) 744-2082 (806) 744-2083 Fax dcrook@nts-online.net Attorney for the Petitioner, MICHAEL ANDRADA
_/S/ David Crook DAVID CROOK Texas State Bar No. 05109530
CERTIFICATE OF COMPLIANCE WITH T.R.A.P. 9.4(i)(2)(D) This is to certify that the length of the foregoing Petition for Discretionary Review conforms with the Texas Rule of Appellate Procedure 9.4, in that the brief, computer-generated, is 1,406 words, which is no longer than 4,500 words, exclusive of the pages containing the identity of the parties and counsel, any statement regarding oral argument, the table of contents, the index of authorities, the statement of the case, the issues presented, the signature, and the proof of service. /s/ David Crook _________________ David Crook
CERTIFICATE OF SERVICE
This is to certify that a true and accurate copy of the above and foregoing PETITION
12 FOR DISCRETIONARY REVIEW was mailed on this day to the Hon. Jeff Ford, attorney for the State of Texas, at his office address of Office of the District Attorney, PO Box 10536, Lubbock, TX 79408-3536. It was also mailed to Hon. Lisa McMinn, State Prosecuting Attorney, P.O. Box 12405, Austin TX 78711, on April 14, 2015.
/s/David Crook David Crook
13 APPENDIX
14 In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-13-00278-CR
MICHAEL ANDRADA, APPELLANT
THE STATE OF TEXAS, APPELLEE
On Appeal from the 137th District Court Lubbock County, Texas Trial Court No. 2012-436,468, Honorable John J. "Trey" McClendon, Presiding
March 16, 2015
MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Through four issues, appellant Michael Andrada appeals his conviction and life
sentence in prison for possession of four grams or more but less than 200 grams of
methamphetamine with intent to deliver, enhanced by a prior felony conviction and a
drug-free zone finding.1 The judgment also contains a deadly weapon finding. We will
affirm.
1 TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6), 481.112(d) (West 2010). An offense under section 481.112(d) is punishable by imprisonment for life or for a term of Background
As part of a narcotics investigation, Lubbock police officers assisted by a
S.W.A.T. team executed a no-knock search warrant at a two-bedroom residence
occupied by appellant. As officers entered appellant attempted to flee but was
apprehended.
A pat-down search yielded a package containing 4.66 grams of a substance that
proved to be methamphetamine. Also located on appellant’s person was currency
amounting to $315 in various denominations. Elsewhere in the residence, officers
found a firearm and body armor. They also located scales, plastic bags, a surveillance
camera, marijuana, spiral notebooks which, according to trial testimony, contained a
record of narcotics transactions, and a substance later identified as a cutting agent for
methamphetamine.
Officers associated one bedroom with appellant. It contained a bed. A recently
issued traffic ticket found in the room bore appellant’s name. A loaded nine-millimeter
handgun was on the bed.
___________________________ not more than 99 years or less than 10 years, and a fine not to exceed $100,000. TEX. HEALTH & SAFETY CODE ANN. § 481.112(e) (West 2010). On a showing of a prior felony conviction, the minimum term of confinement is increased to fifteen years. TEX. PENAL CODE ANN. § 12.42(c)(1) (West Supp. 2014). If it is shown that an offense under section 481.112(e) was committed in a drug-free zone, the minimum term of confinement is increased by five years. TEX. HEALTH & SAFETY CODE ANN. § 481.134(c) (West Supp. 2014). Appellant plead true to the prior felony conviction enhancement allegation and not true to the drug-free zone allegation.
2 According to an investigating officer, the other bedroom appeared to be used for
storage. It contained tires and bags. In this bedroom, officers found body armor. 2
Appellant was charged, convicted, and sentenced as noted.
Analysis
Admissibility of Body Armor
Through his first issue, appellant argues the trial court abused its discretion by
admitting evidence of the presence of the body armor discovered in the residence. He
characterizes the error as one involving the admission of evidence of other crimes or
wrongs in violation of rule of evidence 404(b).
During testimony an officer explained body armor contains a “ballistic material”
intended to stop or slow the impact of a bullet. Another officer testified in his opinion a
person dealing narcotics might have “digital scales, baggies, and a lot of times, they’ll
have firearms, body armor, to protect the narcotics.” Another officer testified similarly.
The officer agreed that in the residence police located narcotics, money, body armor
and a firearm. Over objection, the court admitted the body armor into evidence.
The admissibility of evidence is within the discretion of a trial court and will not be
overturned absent an abuse of discretion. Moses v. State, 105 S.W.3d 622, 627 (Tex.
Crim. App. 2003). If the ruling comes within the zone of reasonable disagreement, an
appellate court should affirm. Id.
2 “[B]ody armor’ means any body covering manifestly designed, made, or adapted for the purpose of protecting a person against gunfire.” TEX. PENAL CODE ANN. § 46.041(a) (West 2011). It is a third-degree felony offense for a previously convicted felon to possess body armor. Id. at 46.041(b),(c).
3 Under rule of evidence 401, evidence is relevant if it makes the existence of a
fact that is of consequence to the determination of the action more probable than it
would be without the evidence. TEX. R. EVID. 401; Moses, 105 S.W.3d at 625. Relevant
evidence is presumed admissible. TEX. R. EVID. 402; Moses, 105 S.W.3d at 625.
Under rule 404(b), evidence of other crimes, wrongs, or acts is inadmissible to prove a
person’s character for the purpose of showing action in conformity therewith, but is
admissible for other purposes such as showing motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident. TEX. R. EVID. 404(b);
Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex. Crim. App. 1991) (op. on reh’g);;
Hollis v. State, 219 S.W.3d 446, 456 (Tex. App.—Austin 2007, no pet.).
Although as noted possession of body armor by a convicted felon is itself an
offense, the court did not instruct the jury of that fact, nor do we find an indication in the
record the jury otherwise was made aware of it during the guilt-innocence phase of
trial.3 It is our assessment that the body armor was not presented as evidence of a
separate wrongful act under rule 404(b). To assess appellant’s challenge to admission
of this evidence we will, however, consider it as addressing the body armor’s relevance.
See TEX. R. APP. P. 38.1(f) (issue in appellant’s brief treated as covering every
subsidiary question fairly included); 38.9 (briefing rules construed liberally).
3 A limiting instruction in the charge pertained to evidence “tending to show that the Defendant herein committed offenses other than the offenses alleged against him in the indictment.” The jury could consider such evidence only for “determining the motive, intent, preparation, plan, knowledge.” Had the jury also been told appellant was a convicted felon and possession of body armor by a felon is unlawful, the instruction would guide their consideration of the body armor.
4 In its context with the other evidence of narcotics dealings presented, we believe
the body armor was probative of appellant’s intent to deliver narcotics. See United
States v. Mays, 466 F.3d 335, 341 (5th Cir. 2006) (“The firearms, body armor, scales,
measuring cup, and baggies all qualify as ‘tools of the trade’ that indicate that [the
defendant] did not intend to keep the cocaine base for personal use”);; United States v.
McDowell, 762 F.2d 1072, 1075-76 (D.C. Cir. 1985) (per curiam) (explaining “someone
who intends to sell a substantial amount of [a controlled substance] is more likely than
an ordinary drug abuser to fear that others might try to shoot him, and to acquire a
bulletproof vest in order to guard against that danger . . . . The vest was logically part of
the specific equipment [the defendant] might use in selling the drug, and thus tended to
show that [the defendant] actually intended to make such sales”).
Further, the body armor was relevant to the deadly-weapon inquiry. See United
States v. Young, 68 Fed. Appx. 744, 2003 U.S. App. LEXIS 7432, at *3-4 (8th Cir. 2003,
Apr. 21, 2003) (per curiam) (bullet proof vest and ammunition were probative of felon’s
possession of firearms and the probative value of evidence was not outweighed by the
danger of unfair prejudice). “In both the case of drug paraphernalia and drugs and the
case of a bullet-proof vest and a firearm, the relationship between the contraband and
the tools sometimes used with contraband allows a logical inference to be drawn.”
United States v. Lee, 612 F.3d 170, 184 (3d Cir. 2010).
Finally, even if considered under rule 404(b), the vest was not offered to prove
appellant’s character but was “squarely relevant on the issue of intent.” McDowell, 762
F.2d at 1075.
5 Appellant’s first issue is overruled.
Improper Jury Argument
Through his second issue, appellant asserts the prosecutor, during jury argument
in the guilt-innocence phase of trial, misinformed the jury of the law on a deadly weapon
finding by stating, “Now, Ladies and Gentlemen, you don’t have to go back there and
say he actually had [the firearm] in his hand. The State does not have to prove that he
actually was putting it in his hand.”
Counsel for appellant objected, saying the prosecutor’s argument was a
misstatement of the law. The trial court overruled the objection but immediately
instructed the jury, “The Jury is—is directed, however, to refer to the Court’s Charge in
regards to what the law is.” Earlier in his argument the prosecutor told the jury, “[The
charge] gives you all the answers you need. If you have a question about the law, and
you refer back to this.”
The charge included the following deadly-weapon special issue to be answered
only if the jury first found appellant guilty of he charged offense: “Do you, the Jury, find
beyond a reasonable doubt that the Defendant used or exhibited a deadly weapon,
namely a firearm, during the commission of the offense for which he has been
convicted?” The question required the jury to respond either “we do” or “we do not.”
The charge did not define the terms “use” or “exhibit” or give the jury further instruction
regarding the application of those terms to this case. The charge contained a general
instruction that undefined terms should be given their common meanings.
6 During its deliberation the jury sent out two notes relating to the deadly-weapon
special issue. It first asked “what happens” if, having agreed to appellant’s guilt, the jury
could not agree on the deadly-weapon question. Next, it inquired “is testimony available
for us to review stating where and how the gun was discovered?”
On appeal, appellant does not explain in what sense the prosecutor’s statement
was a misstatement of the law. “The purpose of closing argument is to facilitate the
jury’s proper analysis of the evidence presented at trial in order to arrive at a just and
reasonable conclusion based solely on the evidence.” Harris v. State, 122 S.W.3d 871,
883 (Tex. App.—Fort Worth 2003, pet. refused). In so doing, counsel may correctly
quote or paraphrase the law found in the jury charge. Whiting v. State, 797 S.W.2d 45,
48 (Tex. Crim. App. 1990); see Bess v. State, No. AP-76,377, 2013 Tex. Crim. App.
Unpub. LEXIS 334, at *94 (Tex. Crim. App. Mar. 6, 2013) (not designated for
publication) (explaining during closing argument parties may correctly explain the law
contained in the jury charge and its application). “Each side is entitled to explain a legal
concept as long as the example given by counsel does not constitute a statement of the
law contrary to that in the charge.” Eckert v. State, 672 S.W.2d 600, 603 (Tex. App.—
Austin 1984, pet. refused).
The Court of Criminal Appeals in Patterson v. State, 769 S.W.2d 938, 941 (Tex.
Crim. App. 1989), stated that “used . . . a deadly weapon” during the commission of the
offense means that the deadly weapon was employed or utilized in order to achieve its
purpose, while “exhibited a deadly weapon” means that the weapon was consciously
shown or displayed during the commission of the offense. Id. “Used. . . during the
commission of a felony offense” refers to the wielding of a firearm with effect, but also
7 extends to any employment of a deadly weapon, even its simple possession, if such
possession facilitates the associated felony. Id. One can “use” a deadly weapon
without exhibiting it. Id. See Plummer v. State, 410 S.W.3d 855 (Tex. Crim. App. 2013)
(discussing Patterson); Coleman v. State, 145 S.W.3d 649, 655 (Tex. Crim. App. 2004)
(stating, in possession with intent to deliver case, defendant’s physical proximity to
deadly weapon is not determinative for deadly weapon finding;; rather, the “[t]he real
question is whether the weapons are found to have facilitated [the defendant’s]
possession and intended distribution of the drugs”); cf. Gale v. State, 998 S.W.2d 221,
225-26 (Tex. Crim. App. 1999) (concluding that the evidence was legally sufficient to
find defendant “used” firearms found by police in a closet with marijuana for purposes of
the deadly weapon special issue). In the present case, an officer gave opinion
testimony that a person dealing narcotics might possess a firearm “to protect the
narcotics.” Thus the jury could have believed appellant used a firearm to facilitate the
charged offense. The prosecutor’s statement was not contrary to the law and charge.
Appellant’s second issue is overruled.
Expert Testimony on Gang Affiliation
At the punishment phase of trial, an officer rendered opinion testimony
concerning appellant’s gang affiliation. By his third issue, appellant argues the
testimony should have been excluded because it was not reliable. Following a hearing
outside the presence of the jury the trial court overruled appellant’s objections to the
officer’s testimony, including one raising reliability.
8 The officer testified he has been a licensed peace officer since 1989. In that
capacity, he has worked in narcotics units, a police “gang unit,” as a robbery homicide
detective, and with a DEA task force. Currently he investigates offenses including
gang-and narcotics-related offenses. He is trained in gang-related matters, has dealt
with street and prison gangs in Lubbock since 1991, and has taught officers and others
involved in the criminal justice system about gang affiliation and identification. He has
testified in state and federal courts on gang affiliation.
During testimony the officer identified the Lubbock street gangs, including one
known as the North Side Locos. He also discussed the West Texas prison gang. The
officer explained that certain local street gangs such as North Side Locos do not
operate separately within prisons so their members are inclined to join West Texas for
protection.
In the officer’s opinion, those involved in street gangs tend to obtain tattoos
containing symbols and numerals designating affiliation with a particular gang. The
officer discussed a series of admitted photographs depicting appellant’s tattoos.
In the photographs, the officer noted a tattoo containing a red bandanna which
he believed was indicative of the North Side Locos, whose color is red. Another tattoo
containing the words “north side” identified with the North Side Locos. The officer
attributed another tattoo to the North Side Locos gang and West Texas gang based on
red strains in the attire of its characters and the words “West Texas,” inscribed on a
character’s cap. The officer agreed that the North Side Locos traffic in narcotics for
financial gain. This he found represented by tattoo characters with money. The officer
9 rendered the opinion that appellant is a member of the North Side Locos and the West
Texas Tango.4
We review a trial court's ruling on the admissibility of expert testimony for an
abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011);
Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010). Generally, testimony
concerning the gang affiliation of a defendant may be relevant and admissible at the
punishment phase of trial to show the defendant’s character. Garcia v. State, 239
S.W.3d 862, 866-867 (Tex. App.—Houston [1st Dist.] 2007, pet. refused); see TEX.
CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1) (West Supp. 2014).
In performing its gatekeeper function as to the admissibility of expert testimony, a
trial court must determine that (1) the witness qualifies as an expert by reason of
knowledge, skill, experience, training, or education; (2) the subject matter of the
testimony is appropriate for expert testimony; and (3) admitting the expert testimony will
assist the fact-finder in deciding the case. See TEX. R. EVID. 702; Vela v. State, 209
S.W.3d 128, 131 (Tex. Crim. App. 2006); Rodgers v. State, 205 S.W.3d 525, 527 (Tex.
Crim. App. 2006). These conditions are usually known as qualification, reliability, and
relevance. Vela, 209 S.W.3d at 131.
Here, the opinion testimony of the officer concerned “soft” science. See
Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000) (distinguishing “hard”
from “soft” sciences). The reliability of soft science evidence may be established by
showing that the field of expertise involved is legitimate, the subject matter of the
4 Earlier in his testimony the officer stated his opinion the West Texas gang and the West Texas Tango gang are the same gang.
10 expert’s testimony is within the scope of that field, and the expert’s testimony properly
relies on or utilizes the principles involved in that field. See id.
The study of gang behavior is a generally accepted field of expertise. Hernandez
v. State, No. 01-06-00779-CR, 2013 Tex. App. LEXIS 5228, at *52 (Tex. App.—Houston
[1st Dist.] Apr. 30, 2013, no pet.) (mem. op., not designated for publication); see Morris
v. State, 361 S.W.3d 649, 656 (Tex. Crim. App. 2011) (“Other generally accepted areas
of expert testimony may involve the gaining of specialized knowledge through
experience or personal research: the behavior of gangs . . .”);; id. at 656 n.31 (citing
Ortiz v. State, 93 S.W.3d 79, 86 (Tex. Crim. App. 2002) (noting officer in sheriff’s
department rendered expert testimony on prison gangs) and United States v. Padilla,
387 F.3d 1087, 1094 (9th Cir. 2004) (finding expert testimony of a detective based on
his “extensive experience with Los Angeles street gangs, and the Cuatro Flats gang in
particular” was reliable)).
The officer’s testimony concerning street and prison gangs, and particularly the
North Side Locos and the West Texas prison gang, included matters such as gang-
specific words, numbers, and colors, as well as gang purposes like narcotics trafficking
and protection in prison. Such testimony is within the scope of gang identification
expertise.
Finally, the officer’s opinion testimony was supported by law enforcement
experience including dealing with street and prison gangs in Lubbock since 1991,
training which included instructing other criminal justice professionals in gang affiliation
and identification, and prior expert testimony in state and federal courts. We find the
11 trial court did not abuse its discretion by implicitly finding the evidence of gang
identification and affiliation presented through the officer was sufficiently reliable to
permit its admission. See United States v. Thomas, No. 10-4725 and No. 10-4729, 490
Fed. Appx. 514, 2012 U.S. App. LEXIS 15001, at *14-15 (4th Cir. July 20, 2012) (noting
reliability of the testimony of a gang expert depends heavily on the expert’s knowledge
and experience rather than the methodology or theory behind it).
Appellant’s third issue is overruled.
Omission from the Record of the Charge and Verdict Forms
In his fourth issue appellant argues the trial court denied him due process by
failing to resolve a matter regarding an omission from the clerk’s record on appeal
pursuant to the procedure of appellate rule 34.5(e).5
In his initial appellate brief, appellant made us aware that the court’s charge on
guilt-innocence and the verdict forms were not contained in the clerk’s record. In a
letter to the parties we pointed out appellate rule 34.5(e) and granted appellant time to
pursue relief under the rule and supplement his brief if necessary. The parties did not
reach a stipulation under rule 34.5(e). We are not told the reason. But appellant filed in 5 Appellate rule 34.5(e), entitled Clerk’s Record Lost or Destroyed, provides:
If a filing designated for inclusion in the clerk’s record has been lost or destroyed, the parties may, by written stipulation, deliver a copy of that item to the trial court clerk for inclusion in the clerk’s record or a supplement. If the parties cannot agree, the trial court must—on any party’s motion or at the appellate court’s request—determine what constitutes an accurate copy of the missing item and order it to be included in the clerk’s record or a supplement.
TEX. R. APP. P. 34.5(e).
12 the trial court a “motion to supplement clerk[‘s] record on appeal,” to which he attached
unsigned copies of a charge and verdict forms, bearing the style of appellant’s case in
the trial court. His motion stated that he believed his attachments were “correct copies.”
Nonetheless, his motion asked the court to determine “what constitutes an accurate
copy” of the missing jury charge and verdict forms, and order that they be included in
the clerk’s record. The trial court signed an order granting appellant’s motion.6 Shortly
thereafter, a supplemental clerk’s record containing appellant’s motion and the court’s
order was filed in this court. Within the time allowed, appellant filed a supplemental
brief raising his due process issue. As we understand it, appellant’s complaint is that
the trial court did not render “a full judicial determination of the issue . . . .”
The State’s brief responds both to appellant’s initial and supplemental briefs.
With regard to this fourth issue, the State points out it had arranged for the court
reporter to submit a transcription of the trial court’s reading of the guilt-innocence
charge and the deadly-weapon special issue to the jury. A supplemental reporter’s
record was filed containing such a transcription.
Appellant’s fourth issue lacks merit. We have no record that appellant notified
the trial court of his complaint that the rule 34.5(e) order the court signed, or the court’s
action pursuant to the order, denied him due process. Thus, no complaint about the
trial court’s action is preserved for our review. TEX. R. APP P. 33.1(a). Appellant made
one objection to the charge at trial but does not complain of charge error on appeal.
Although the appellate record still does not contain a verdict form signed by the jury
6 From our examination of the supplemental clerk’s record containing the court’s order, it appears the order the court signed was provided by appellant.
13 foreperson, the reporter’s record reflects the trial court asked, and was told, the verdict
was unanimous, and read the verdict. The court then read the special issue and the
affirmative answer, and remarked, “It is signed by the foreperson of the Jury.” Appellant
did not poll the jury, and raised no objection to the announcement of the verdict. Even
now appellant does not tell us what he thinks may be wrong with the charge or verdict
forms. We further note the charge at punishment, contained in the appellate record,
begins with the recitation that the jury found appellant guilty of the charged offense.
Appellant made no objection to this statement in the trial court and does not complain
about it here.7
For all these reasons, we overrule appellant’s fourth issue.
Conclusion
The judgment of the trial court is affirmed.
James T. Campbell Justice
Do not publish.
7 Appellant was represented at trial by the same attorney who represents him in this court.