ACCEPTED 14-14-00403-cr FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 1/14/2015 12:38:46 PM CHRISTOPHER PRINE
No. 14-14-00403-CR CLERK
In the Court of Appeals FILED IN For the 14th COURT OF APPEALS HOUSTON, TEXAS Fourteenth District of Texas 1/14/2015 12:38:46 PM At Houston CHRISTOPHER A. PRINE Clerk
No. 1342020 In the 177th District Court Of Harris County, Texas CEDRIC HOPES Appellant v. THE STATE OF TEXAS Appellee State’s Appellate Brief
DEVON ANDERSON District Attorney Harris County, Texas
NATHAN HENNIGAN Assistant District Attorney Harris County, Texas
CLINTON A. MORGAN Assistant District Attorney Harris County, Texas State Bar No. 24071454 morgan_clinton@dao.hctx.net
1201 Franklin, Suite 600 Houston, Texas 77002 Tel: (713) 755-5826 FAX: (713) 755-5809
Counsel for the Appellee
Oral Argument Not Requested Statement Regarding Oral Argument
The appellant requested oral argument, though he gave no particular
reason why. The State believes the briefs in this case adequately apprise this
Court of the issues and the law, and any marginal benefit from oral argument
does not justify the considerable amount of time that preparation for oral
argument requires of the parties and the Court. Therefore, the State does not
request oral argument.
i Identification of the Parties
Counsel for the State:
Devon Anderson District Attorney of Harris County
Nathan Hennigan — Assistant District Attorney at trial
Clinton A. Morgan Assistant District Attorney on appeal
Appellant:
Cedric Hopes
Counsel for the Appellant:
C. Patrick Ngwolo & Robert Alton Jones — Counsel at trial
Alexander Bunin & Daucie Schindler — Counsel on appeal
Trial Judge:
Ryan Patrick Presiding judge
ii Table of Contents
Page
Statement Regarding Oral Argument .......................................................... i Identification of the Parties ........................................................................ ii Table of Contents .......................................................................................... iii Index of Authorities ....................................................................................... v Statement of the Case ................................................................................... 1 Statement of Facts ......................................................................................... 1 Summary of the Argument ........................................................................... 2 Reply to Point One Neither the appellant’s trial objection nor his appellate complaint are responsive to Sgt. Ponder’s testimony. The appellant complains about testimony regarding his “gang affiliation,” but Ponder only testified as to the meaning of the appellant’s tattoos and said nothing of his gang affiliation. ... 3 I. Trial Proceedings ........................................................................................................ 3 A. The Daubert hearing and Ponder’s qualifications .................................... 3 B. The appellant’s objections .................................................................................. 5 C. Ponder’s testimony ................................................................................................ 6 II. The appellant’s appellate complaint and why it fails .................................. 7 A. The appellant’s objection and argument do not complain about Ponder’s actual testimony. ........................................................................................... 8 B. The trial court did not abuse its discretion in finding Ponder qualified to testify to the content of the appellant’s tattoos. ........................ 9 Reply to Point Two The appellant’s second point presents nothing for this Court’s review because it provides no argument as to why a relevancy complaint should be addressed as a constitutional violation. .......................................................................14
iii Reply to Point Three There is no sufficiency review for extraneous offenses presented during the punishment phase. Moreover, the State’s evidence proved an extraneous bad act beyond a reasonable doubt. ........................................................................................15 Conclusion .................................................................................................... 20 Certificate of Compliance and Service ..................................................... 21
iv Index of Authorities
Cases Aguilar v. State 29 S.W.3d 268 (Tex. App.— Houston [14th Dist.] 2000, no pet.) .................................................................................. 5 Bryant v. State 340 S.W.3d 1 (Tex. App.— Houston [1st Dist.] 2010, pet. ref’d).............................................................................. 12 Coble v. State 330 S.W3d 253 (Tex. Crim. App. 2010) ........................................................................ 10 Garcia v. State 239 S.W.3d 862 (Tex. App.— Houston [1st Dist.] 2007, pet. ref’d)................................................................................. 5 Malpica v. State 108 S.W.3d 374 (Tex. App.— Tyler 2003, pet. ref’d).......................................................................................................... 17 Rodgers v. State 205 S.W.3d 525 (Tex. Crim. App. 2006) ........................................................... 9, 10, 11 Smith v. State 227 S.W.3d 753 (Tex. Crim. App. 2007) ....................................................................... 17 Thompson v. State 4 S.W.3d 884 (Tex. App.— Houston [1st Dist.] 1999, pet. ref’d).............................................................................. 18 United States v. Garza 566 F.3d 1194 (10th Cir. 2009)........................................................................................ 10
Statutes TEX. CODE CRIM. PROC. art. 37.07............................................................................................. 17
v Rules TEX. R. EVID. 702........................................................................................................................... 10
vi To the Honorable Court of Appeals:
Statement of the Case
The appellant was indicted for aggravated robbery with a deadly
weapon. (CR 11). The indictment contained an enhancement paragraph
alleging a prior felony conviction. (CR 11). The appellant pleaded not guilty. (7
RR 11). A jury found him guilty as charged. (CR 331, 332). The trial court
sentenced the appellant to thirty-five years’ confinement. (CR 332). The trial
court certified the appellant’s right of appeal, and the appellant filed a timely
notice of appeal. (CR 335, 336).
Statement of Facts
The appellant does not raise any issues related to his guilt, thus a
detailed recitation of the facts is not necessary.
Wearing ski masks and wielding pistols, the appellant and Reginald
Hollins committed robbery at a southeast Houston AutoZone. (7 RR 36, 43; 8
RR 109, 121). Hollins held the store manager at gunpoint and forced him to
empty the safe. (8 RR 113-16). Hollins and the appellant then left the store
with approximately $2800 and got into a black Impala driven by Derrick
Hopes. (7 RR 36, 43; 8 RR 93). Police stopped the black Impala a few minutes
later about a block away; inside the car were all three robbers, the bag of
1 money, the implements used in the robbery, and Derrick Hopes’s four-year-old
child.1 (7 RR 36-38, 41; 8 RR 73-73, 84).
Summary of the Argument
The appellant raises three points of error relating to the punishment
phase of the trial. In his first point the appellant claims that the trial court
erred in admitting testimony that he was affiliated with a gang. However, the
trial court did not admit such testimony. The complained-of testimony on
described the appellant’s tattoos, it did not state that he was a gang member,
and the appellant has presented no argument regarding that testimony.
In his second point, the appellant claims that his constitutional rights
were violated by the State’s failure to admit evidence about gangs. However,
neither at trial nor on appeal has the appellant presented argument or
authority for how that omission is a constitutional violation, thus his
argument should be rejected as inadequately briefed.
In his third point, the appellant claims that the trial court erred in
considering evidence of a second robbery that was admitted in the
punishment phase because the evidence does not prove, beyond a reasonable
doubt, that he committed that offense. However, there is no sufficiency review
1Trial prosecutor: “Who the hell brings a 4-year-old along on an aggravated robbery spree? Who does that?” (10 RR 28). 2 for extraneous offenses admitted in the punishment phase. Moreover, whether
or not the State’s evidence proved the appellant’s involvement in a second
robbery, it certainly proved his involvement with an organized armed-robbery
ring, which is an extraneous bad act regardless of the appellant’s involvement
in the second robbery.
Reply to Point One
Neither the appellant’s trial objection nor his appellate complaint are responsive to Sgt. Ponder’s testimony. The appellant complains about testimony regarding his “gang affiliation,” but Ponder only testified as to the meaning of the appellant’s tattoos and said nothing of his gang affiliation.
I. Trial Proceedings
A. The Daubert hearing and Ponder’s qualifications
Punishment in this case was decided by the trial court. The State’s first
punishment-phase witness was Sgt. Clint Ponder of the Houston Police
Department. The purpose of his testimony was to explain the meaning of the
appellant’s gang-related tattoos. (9 RR 69-70). Prior to his testimony, the
prosecutor explained that the defense wished to have a Daubert hearing
regarding Ponder. (9 RR 54). The parties then proceeded to ask Ponder about
his qualifications, though the court reporter labeled on a portion of this as a
Daubert hearing. (See 9 RR 54-71).
3 Ponder said he had been a police officer for 17 years and had spent most
of that time in the gang unit. (9 RR 54-55). He said that he had extensive
training related to street gangs, including “attend[ing] numerous conferences
and gang classes,” and that he had also taught “many” classes on the subject. (9
RR 55, 61). Ponder said that he had testified “ten to 15” times in Harris County
courts regarding gang membership, and the trial judge stated that he had
found Ponder to be an expert regarding gangs in previous cases. (9 RR 60, 64).
Defense counsel asked Ponder whether he had read any “learned
treaties [sic].” (9 RR 64). Ponder said that he did not understand what that
was. (9 RR 64-65). Ponder said that, aside from the various trainings and
conferences he had attended, he learned most of his information from talking
to people “on the street.” (9 RR 67). Ponder described himself as an expert
regarding gang membership and gang identification, and he said that he,
personally, had been responsible entering “almost 700” individuals into Harris
County’s gang database.2 (9 RR 59-61).
Under questioning from defense counsel, Ponder explained that the
presence of gang-related tattoos on an individual was “a really strong
indicator” as to gang membership, but some additional indicia of gang
2 Ponder said that the database had approximately 20,000 entries, meaning he was responsible for roughly 3.5% of the entries. (9 RR 59-60). 4 membership was required to enter someone into the database as a registered
gang member. (9 RR 68-69). Ponder said that the testimony he normally
provides regards the meaning of defendants’ tattoos and, based purely on the
tattoos, he does not opine as to whether the individual is a gang member. (9
RR 69-70) (“I’m in here to tell you what tattoos mean and what they
represent.”).
B. The appellant’s objections
At the end of the hearing, defense counsel stated that he objected “to the
relevance of this witness, and as to whether or not under Daubert, that he can
make a conclusion as an expert concerning Mr. Hopes and any street gang,
based upon anything he may have observed.” (9 RR 70). The State responded
by citing to two cases (Aguilar v. State, 29 S.W.3d 268 (Tex. App.—Houston
[14th Dist.] 2000, no pet.) and Garcia v. State, 239 S.W.3d 862 (Tex. App.—
Houston [1st Dist.] 2007, pet. ref’d)) that stand for the general principle that
testimony regarding a defendant’s gang affiliation and gang tattoos is
admissible. (9 RR 70). Defense counsel replied by making an objection that
cited to four sections of the Texas constitution and two amendments to the
federal constitution, though he provided no argument as to the relevance of
5 those constitutional provisions. (9 RR 70-71). The trial court overruled these
objections. (9 RR 71).
C. Ponder’s testimony
Ponder testified that he observed and photographed the appellant’s
tattoos. (9 RR 72). These photographs were admitted, over defense objection,
as State’s Exhibits 105-18. (9 RR 72, 74-75). Ponder then proceeded to explain
the meaning of several of the appellant’s tattoos, including several that
corresponded with membership in the Crips. (9 RR 75-82) (e.g. “Up top, O.G.,
that stands for original gangster. Right here it says ‘crip for life.’ Right here it
says BK. BK is a common term used by Crips. BK means essentially ‘Blood
Killer’, disrespecting Bloods.”). Ponder explained that the Crips and Bloods
were enemies, and that several of the appellant’s tattoos reflected animosity
toward Bloods. (9 RR 76, 79, 82) (e.g. “And then you also have a character here
of a man who’s holding up a dog’s head, Dawg’s D.A.W.G. Bloods are referred to
as Dawgs. And what he’s doing here is disrespecting Bloods by holding a dog’s
head up in the air.”).
On cross-examination, Ponder said that he was unaware of when the
appellant got these tattoos. (9 RR 83). Defense counsel asked Ponder whether
“a person who has spent a number of years incarcerated in a juvenile facility
6 when they were very young” might “have a tattoo placed on them” in order to
“keep from being assaulted” by prison gangs, and Ponder said this was
possible. (9 RR 68).
II. The appellant’s appellate complaint and why it fails
On appeal, the appellant presents a lengthy argument questioning, inter
alia, whether “gang affiliation recognition” is a legitimate field of study,
whether Ponder was qualified to testify about it, and — assuming the answers
to those questions was affirmative — whether Ponder “properly … utilized the
principles involved in the field of gang affiliation recognition.” (Appellant’s
Brief at 10-18). The appellant would have this Court believe that determining
gang affiliation is an arcane science that can only be practiced by those with
post-graduate degrees and journal publications when, in fact, gang members
typically display their affiliation in such a manner as to be readily discernible
by the types of people who join street gangs. The State believes that the
meaning of tattoos like “Crippin’ Ain’t Easy” and “Original Gangster” is within
the expertise of a 17-year police veteran who works in the gang division, and
that it is absurd to apply concepts like “methods and procedures of science”
here.
7 A. The appellant’s objection and argument do not complain about Ponder’s actual testimony.
The appellant’s complaint at trial was that Ponder was not qualified to
“make a conclusion as an expert concerning [the appellant] and any street
gang, based upon anything he may have observed.” (9 RR 70). The import of
this objection, when viewed in light of the questions defense counsel asked
Ponder, was that Ponder could not opine as to whether the appellant was
actually a gang member. This is how the appellant views his objection on
appeal, as his argument complains about Ponder’s “testimony regarding [the
appellant’s gang affiliation.” (See, e.g., Appellant’s Brief at 13 (“There was no
testimony establishing statistical standards and techniques used in his
designation of an individual as a gang member.”)).
However, Ponder did not testify that the appellant was a gang member.
All he did was to give some general background regarding the Crips and
Bloods, and to describe the meaning of the appellant’s tattoos. (See 9 RR 70
(“I’ll say what the tattoos mean and … it’s open to the interpretation of the
Court.”)).
An analogous hypothetical might be a defendant with several tattoos in
a foreign language, say, French. Anyone who had an extensive, long-term
involvement with the French language and culture might be able to interpret
8 the language in the tattoos and explain any idioms contained in the tattoos.
But that same witness, without any knowledge of the defendant, would
probably be unable to testify that the defendant was a Frenchman. Those are
plainly two different types of testimony.
In this case, all Ponder testified to was the content of the appellant’s
tattoos. Neither at trial nor on appeal has the appellant actually objected to
this testimony. This Court should reject the appellant’s first point because it
presents nothing for review.
B. The trial court did not abuse its discretion in finding Ponder qualified to testify to the content of the appellant’s tattoos.
Even if this Court believes the appellant’s trial objection and appellate
complaint adequately raise the issue of Ponder’s qualification, the appellant’s
first point still fails because Ponder was adequately qualified to testify about
the appellant’s tattoos. A trial court’s determination of an expert witness’s
qualifications is reviewed only for an abuse of discretion. Rodgers v. State, 205
S.W.3d 525, 527-28 (Tex. Crim. App. 2006).
The appellant cites to cases regarding the admissibility of scientific
evidence, and to how to analyze evidence from the soft sciences. (See
Appellant’s Brief at 11-14 (citing, inter alia, Coble v. State, 330 S.W3d 253 (Tex.
9 Crim. App. 2010)). However, interpreting the meaning of tattoos is not a
science at all.
Rule of Evidence 702 governs the admissibility of testimony regarding
“scientific, technical, or other specialized knowledge.” TEX. R. EVID. 702. Before
providing such expert testimony, the proponent of the evidence must
demonstrate that the witness is qualified “by knowledge, skill, experience,
training, or education” to provide the testimony. Ibid.
Courts have widely recognized that law enforcement officers, through
their experience, often acquire specialized knowledge that qualifies them to
testify as experts on aspects of the criminal world that, while not rising to the
level of a science, are outside the realm of common knowledge. See, e.g., United
States v. Garza, 566 F.3d 1194, 1199 (10th Cir. 2009) (rejecting “wooden”
application of factors mentioned in Daubert to every expert witness and
holding that police officer was qualified, under Rule 702, to testify regarding
“the use of firearms in the drug trade”). In Rodgers, the Court of Criminal
Appeals provided several factors for appellate courts to look at when
determining whether a trial court abused its discretion in admitting expert
testimony on non-scientific matters: the complexity of the subject, how
conclusive the expert’s opinion is, and how central the testimony is to the
resolution of the case. Rodgers, 205 S.W.3d at 528. Essentially, the more 10 complex the subject, the more conclusive the opinion, and the more central
the testimony to the resolution of the case, the more stringent courts should
be regarding expert qualifications. Ibid.
In Rodgers, the State called a fingerprint examiner, Jumper, to testify
regarding tire tracks and shoe prints. Id. at 526. Jumper testified he “had never
graduated from college, had never written articles on tire prints, had only a
few days of class work specific to the matching of shoe and tire imprints, had
testified only twice before regarding tire-print comparisons,” and that the
“bulk” of his job was doing fingerprint analysis. Id. at 529. The defendant
objected based on Jumper’s “relative lack of experience, training, and
education in the specific area of shoe- and tire-imprint comparison.” Ibid. The
trial court overruled the objection, and Jumper testified that the defendant’s
shoes and tires were consistent with impressions found at the scene of the
crime. Id. at 529-30. The Court of Criminal Appeals held that tire impression
testimony was “liberally allowed” because “the field of tire and shoe
comparisons is not particularly complex, the witness’s opinions are not
conclusive, and consequently, they are generally not pivotal to the resolution
of the case.” Id. at 534.
In Bryant v. State, the defendant was charged with aggravated sexual
assault of a child, and the State offered evidence from a police officer 11 regarding the predatory grooming of children by sex offenders. Bryant v. State,
340 S.W.3d 1, 7 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). The
defendant objected that the officer was not qualified; he had been working as
an investigator of crimes against children for less than two-and-a-half years,
but he had received training regarding crimes against children and had been
to "conferences and all kinds of different training.” Id. at 7-8. The trial court
overruled the defendant’s objections and allowed the witness to testify
regarding various ways in which sexual predators build rapport with their
victims. Id. at 8.
On appeal, the First Court looked at the various Rodgers factors and
determined that the trial court did not abuse its discretion. Id. at 9-10. First,
“the field of the witness’s expertise was not particularly complex,” as
“grooming” consisted of little more than the “relatively common-sense
proposition that an adult must establish some level of rapport with a child
before being able to manipulate the child into sexual conduct.” Id. at 9. Second,
the testimony was not conclusive to any fact issue, it simply provided
background information. Ibid. And third, the testimony was not central to the
State’s case, as it was not “directly relevant to the elements of the charged
crime.” Id. at 10. Therefore, because the witness’s qualifications were marginal
12 to the case, the appellate court could not conclude that the trial court’s
determination of the witness’s qualifications was a clear abuse of discretion.
In this case, the Rodgers factors show that the trial court did not abuse
its discretion. Ponder testified to the meaning of tattoos, an area that is not
complex. A large part his testimony consisted of simply reading the tattoos
aloud and explaining how that tattoo related to gang activity. (See, e.g., 9 RR 75
(“Right here it says BK. BK is a common term used by Crips. BK essentially
[means] “Blood killer”, disrespecting Bloods.”). The trial court had pictures of
the tattoos that it could examine on its own. Second, Ponder explicitly noted
that his evidence was not conclusive as to whether the appellant was a gang
member. And third, the evidence was not “central” to the State’s punishment
case; the appellant was being punished for the aggravated robbery of an
Autozone, and the gang-tattoo evidence was offered merely as a contextual
guide to the appellant’s life. In this context, the trial court did not abuse its
discretion in determining that Ponder’s extensive experience and training
regarding criminal street gangs was adequate to allow him to testify about the
appellant’s tattoos.
13 Reply to Point Two
The appellant’s second point presents nothing for this Court’s review because it provides no argument as to why a relevancy complaint should be addressed as a constitutional violation.
In his second point of error, the appellant claims that Ponder’s
testimony violated his state and federal constitutional rights because the State
did not elicit sufficient information regarding gangs. (Appellant’s Brief at 19).
The appellant’s complaint in this point regarding Ponder’s testimony is that,
because the State did not provide the trial court with contextual evidence
regarding the Bloods and the Crips, Ponder’s testimony was irrelevant.
(Appellant’s Brief at 19). However, neither at trial — where the appellant
made a shotgun objection invoking a half-dozen constitutional provisions —
nor on appeal has the appellant presented any argument as to why this
complaint is one of constitutional dimension and not just a run-of-the-mill
relevancy issue. None of the cases cited by the appellant treat relevancy as a
constitutional concern, and he gives this Court no argument as to why it
should. Accordingly, this Court should reject the appellant’s second point as
inadequately briefed.
14 Reply to Point Three
There is no sufficiency review for extraneous offenses presented during the punishment phase. Moreover, the State’s evidence proved an extraneous bad act beyond a reasonable doubt.
In the punishment phase, the State admitted evidence regarding the
robbery of a Family Dollar store six days prior to the AutoZone robbery. (9 RR
85-88). The Family Dollar robbery was conducted in a similar manner to the
AutoZone robbery — two masked black males armed with pistols rushing in
and forcing the store manager to put money into a bag that the robbers
brought with them — and the same black Impala used in the AutoZone
robbery was observed nearby. (9 RR 87-90, 98-100). In his third point of error,
the appellant claims that:
The trial court violated [the appellant’s] substantial rights when it improperly considered evidence of an extraneous robbery at the punishment portion of [the appellant’s] trial when [the appellant’s] involvement in that robbery was not sufficiently supported by the record.
(Appellant’s Brief at 21).
Defense counsel did not object when this evidence was admitted, but
when the prosecutor referenced the Family Dollar robbery during closing
argument defense counsel objected based on the lack of evidence that the
appellant was involved in the robbery. (10 RR 27). The trial court responded
15 by noting that the evidence was admitted without objection, and then stating:
“[A]s the finder of fact, I’ll determine what I believe … what was or was not
proven in the punishment phase.” (10 RR 27).
Shortly before pronouncing sentence, the trial court expressed some
disgruntlement at the lack of evidence regarding certain matters in the
punishment phase. (10 RR 29). First, while there was evidence that the
appellant, while a juvenile, had murdered his uncle, there was also some
hearsay testimony that the appellant had killed his uncle in response to some
sexual or physical abuse; the trial court seems to have wanted more
information on this point. (See 10 RR 29).
Second, the trial court noted the evidence concerning the Family Dollar
robbery: “And while, your face apparently was not picked out by the women at
the robbery a week before this, the [modus operandi] was the same. The bag
was identified, the masks were identified, the car, the license plate, all of that.”
(10 RR 29).
The trial court then noted that it should, perhaps, levy a harsh sentence
based on the fact that a co-defendant in the AutoZone robbery had received a
life sentence from a jury. (10 RR 30). The trial court then assessed punishment
at confinement for thirty-five years. (10 RR 30).
16 Code of Criminal Procedure Article 37.07 allows, in the punishment
phase, the introduction of extraneous bad acts that are shown beyond a
reasonable doubt to have been committed by the defendant. TEX. CODE CRIM.
PROC. art. 37.07 §3(a)(1). This is, by its terms, an evidentiary rule, not a rule
that entitles a defendant to sufficiency review of the evidence presented
against him in the punishment phase. See, e.g., Malpica v. State, 108 S.W.3d
374, 378-79 (Tex. App.—Tyler 2003, pet. ref’d). The only review to which a
defendant is entitled is whether the trial court abused its discretion in
admitting the evidence. Ibid. As the appellant did not object to the admission
of the robbery evidence in this case, there is no ruling on admissibility for this
Court to review and it should reject the appellant’s third point.
The appellant presents his argument as a due-process claim, but that,
too, fails. The appellant notes the Court of Criminal Appeals’s dicta from Smith
v. State, 227 S.W.3d 753 (Tex. Crim. App. 2007), that it would violate due
process if extraneous offenses were factored in a defendant’s sentence despite
the fact that there was “no evidence from any source from which it could be
rationally inferred that the defendant had any criminal responsibility for that
extraneous misconduct.” (Appellant’s Brief at 21 (citing Smith, 227 S.W.3d at
764)). This is certainly true, but not applicable to this case for two reasons.
First, Though the trial court referenced the Family Dollar robbery before 17 pronouncing sentence, its statement was ambiguous as to whether the Family
Dollar robbery was a factor in the sentence. See Thompson v. State, 4 S.W.3d
884, 886 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (“Because the
verdict on punishment in a non-capital criminal case is a general verdict, an
appellate court cannot determine whether the jury considered the evidence of
the extraneous offense or if it affected the jury's determination of
punishment.”). And second, while it may be in dispute as to whether the State
admitted enough evidence to show, beyond a reasonable doubt, that the
appellant committed the Family Dollar robbery, there surely was some
evidence that he was involved; as the trial court noted, the same getaway
vehicle was involved, the same money bag was involved, and the robbers used
the same modus operandi.
Moreover, even if the State’s proof would not be sufficient to convict the
appellant of the Family Dollar robbery, the facts of that robbery show, beyond
a reasonable doubt, that the appellant was closely connected to a group that
committed multiple armed robberies. The evidence of the Family Dollar
robbery shows that the AutoZone robbery was not a fluke. The appellant’s
involvement with an organized armed-robbery ring surely was relevant to
considering his punishment.
18 The appellant’s third point should be overruled because he did not
object to the admission of the evidence and thus has not preserved any claim
under Article 37.07. The appellant’s due process claim fails because the State’s
evidence was at least some evidence connecting the appellant to the Family
Dollar robbery, and it was proof beyond a reasonable doubt that the appellant
committed the extraneous bad act of being involved in an organized armed-
robbery ring.
19 Conclusion
The State respectfully submits that all things are regular and the
judgment of the trial court should be affirmed.
/s/ C.A. Morgan CLINTON A. MORGAN Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002-1923 (713) 755-5826 Texas Bar No. 24071454
20 Certificate of Compliance and Service
I certify that, according to Microsoft Word’s word counting function, the
portion of this brief for which Rule of Appellate Procedure 9.4(i)(1) requires a
word count contains 3,859 words.
I also certify that I have requested that efile.txcourts.gov electronically
serve a copy of this brief to:
Daucie Schindler Daucie.Schindler@pdo.hctx.net
/s/ C.A. Morgan CLINTON A. MORGAN Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002-1923 (713) 755-5826 Texas Bar No. 24071454
Date: January 14, 2015