Opinion issued December 17, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00370-CR ——————————— DAVE’ON THOMAS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court Harris County, Texas Trial Court Case No. 1631872
MEMORANDUM OPINION
Dave’on Thomas was convicted by a jury of murder under the law of parties.
See TEX. PENAL CODE §§ 7.01; 19.02. He was sentenced to 50 years’ imprisonment.
On appeal, he argues that the evidence was insufficient to support his conviction. He
also contends that the trial court erred in admitting evidence that the car driven during the murder had been stolen at gunpoint. Finally, he argues that the trial court
abused its discretion by admitting cumulative evidence of his gang affiliation. We
affirm.
Background
At noon on November 13, 2018, Delindsey Mack left Lamar High School and
walked toward his usual meeting spot to wait for his uncle to pick him up, as he did
every day. Keona Mounton walked out with Mack but abruptly turned around and
went back inside before Mack got to the street. A black Subaru pulled up on the
street where Mack was standing. Two masked men with guns shot at Mack from
inside the car. They then got out of the car and fatally shot him at close range. Once
the shooters returned to the Subaru, the driver sped away.
In 2019, Thomas was arrested and charged as a party to murder. The State’s
theory was that Thomas and Mack were members of rival gangs and that Thomas
had planned the murder and driven the getaway car with Kendrick Johnson, who was
one of the shooters. The case proceeded to a jury trial.
During trial, Mack’s uncle testified that Mack had a new girlfriend a few
weeks before the murder. The uncle testified that he picked up Mack after school
each day and that he always met Mack at the same spot on the street. The jury heard
from a bystander parked in a nearby parking lot who heard gunshots, saw a person
shooting someone on the ground, and then saw that person get into the passenger
2 side of a car. The car sped away. The jury viewed surveillance video showing the
same scene. A construction worker at the high school testified that he saw two people
shooting from a car. The shooters got out of the car, stood over the person they were
shooting, and continued to shoot. The two shooters then got back in the car, and the
car drove away, driving past the construction worker. He identified the Subaru in
pictures and testified that at the time of the shooting, the rear passenger window was
covered with a black plastic trash bag pinched in the car door.
The jury heard from several law enforcement officers, many of whom had
specific training and had done extensive investigation of area gangs. Detective T.
Miller, an expert in gang investigations, explained that Thomas and Johnson were
“hall of fame” gang members of the 100 Percent Third Ward gang (“103 gang”).
Mounton was the girlfriend of a 103 gang member and associated with the gang.
Mack was associated with a rival gang, Young Scott Block (“Y.S.B.”), and the two
gangs committed retaliatory killings against one another. November 13, the date of
the murder, was known as “Brae Day,” a time of heightened killing by 103 gang
members to commemorate Braveon Terry, a slain 103 gang member killed by Y.S.B.
in November 2013.
During Detective Miller’s testimony, the jury viewed surveillance video of a
Subaru with its rear window missing and covered with a black plastic bag. The car
circles the block a few times before Mounton, another student, and Mack walk out
3 of the high school. Halfway to the street, Mounton abruptly turns around and goes
back toward the school building. The black Subaru pulls up next to Mack. Two
people shoot from inside the car at Mack. They then get out, stand over his body,
and repeatedly shoot him. They get back in the car, and a third person driving the
car speeds away. Mack was murdered about 12:17 p.m. on November 13, 2018.
The court admitted into evidence Instagram messages exchanged by people
alleged to be involved in the shooting. In October 2018, Johnson and Thomas
messaged about using two cars to get a “drop,” or find and kill rival gang members.
The day before Mack was shot, Thomas messaged other 103 gang members that he
needed an outfit for “Brae Day.” The jury also viewed a text message where Johnson
states that the hall of fame 103 gang members are himself, “Cobi, Dman, and Bravo.”
Detective Miller testified that “Dman” was a nick name for Thomas and that “Bravo”
referred to Braveon Terry.
Messages from Johnson’s phone showed that on November 13, 2018, he
instructed Mounton to lure Mack to a location where the 103 gang could murder
Mack. That same morning, Johnson and Thomas sent messages to each other on
Instagram.
Johnson: SO FORSHO WE DOINTHAT???
Thomas: FA SHIT SHOW MY GEAR IN MY BAG
Thomas: 11:15 DUDE COME ON DON’T B BS SPANZ COMIN?
4 Thomas: DUDE IM BOUTS TO COME TO ASH SHIT SOON AS I GET INA HOOD BC I NEEDA USE UR CHARGER MY SHIT BROKE N WHERE WE MEETING FAT ASS AT
Johnson: LAMAR AND CALL RAYAY CHECK ON THE WHEELS
Johnson: HOW THE BAG GONE STAY OR U ALREADY DID IT YESTERDAY?
Thomas: BC ITS GOING BE CLOSED INA DOOR BUT IM BOUTS TO MAKE THIS HOW COME ANYWAY SO SHE CAN BRING ME GET A GAS TANK
Detective Miller contextualized and interpreted the messages during his
testimony before the jury. Detective Miller testified that from reviewing messages,
103 gang members referred to Mack as “Fat Ass.” Detective Miller explained that
Johnson and Thomas messaged to confirm their plan to find Mack at Lamar around
11:15 a.m. Thomas mentioned he had his “gear” with him, and that he was going to
have a female help him get a tank of gas. Detective Miller testified that 103 gang
members kept ski masks and guns in bags with them, and that “gear” meant that
Thomas had his ski mask and gun. According to Detective Miller, “ash” is a slang
term for “killing.” Johnson told Thomas to call “Rayay” and cell records showed
that Thomas made a call to a contact saved as “RAYRAY” shortly thereafter. When
Johnson asked, Thomas told Johnson that he closed a bag in the door of the car so
that it would stay.
5 Cell records showed that Johnson called Thomas at 11:16 a.m. At that time,
Thomas’s phone was located at the same address where law enforcement later found
the car used in the shooting. There was no activity on Thomas’s phone from 11:22
a.m. until 12:52 p.m. Officer E. Powell, a communications intelligence expert,
testified that this would be consistent with the phone being turned off during that
time.
The jury heard that law enforcement subpoenaed records from Thomas’s high
school and from the daycare where his child attended. The records showed that
Thomas did not attend his third period class, which started at 10:13 a.m.,1 and that
his cell phone was not near his high school at that time. Thomas told police he was
not at school because he left to pick up his sick child from daycare, but daycare
records from that day included when the child received bottles, was changed, or took
naps. The records showed that the child was present all day and not ill.
Detective Miller found videos on Mack’s phone that suggested he was near
Mounton in class around 8:00 a.m. The jury viewed a Snapchat video from Mack’s
account that showed him and Mounton together talking before school started. At the
end of the video, Mack says that if something happens to him, it is because of “this
1 While he was marked present for fourth and fifth periods, Detective Miller, who obtained the records, testified that attendance was not actually taken during those periods. 6 opp.” He gestures to Mounton at the same time. Detective Miller testified that the
two opposing gangs refer to each other as “opps” or “opposites.”
About an hour after the murder, Thomas sent Johnson a screenshot of an
Instagram post from a local news station regarding the Houston Police Department
investigation of the shooting.2 Johnson messaged that he watched the police chief
speak. He messaged that the police know the car they used so they “need new
wheels” and that the police knew what the shooters had on but did not have the story
right. Thomas responded, “IKIK my boy [pin drop emoji]” Detective A. Bock
testified that “IKIK” means “I know, I know.” Detective Bock said that he has
reviewed 3.5 million messages between 103 and Y.S.B. gang members, and a pin
drop emoji is a symbol used by both sides to be symbolic of “a drop,” or locating
rival gang members for assassinations.
The investigation revealed that the black Subaru used during the shooting had
been stolen about five days before the murder. Detective Miller testified that he
learned that the owner of the vehicle was carjacked. A gold Camry rear ended the
Subaru, and when the owner of the Subaru got out of the car, two masked men with
guns pointed the guns at him, took the keys, and drove off in the Subaru. The gold
Camry then drove away. The owner of the Subaru testified similarly. Cell phone
2 The news story in the screen shot mentions a black Suburban rather than a Subaru. It describes the suspects as “three young males wearing all black driving a black Suburban with the black [sic] passenger window covered with a black plastic bag.” 7 records showed that Thomas was near the same location when the Subaru was
reported stolen. He was also communicating with Johnson at that time.
The Subaru was recovered the evening after the murder. A DNA analyst
testified that Thomas could not be excluded as a contributor to DNA found on the
interior driver’s side door of the Subaru. Police also found gun cartridge cases in the
car that matched the cartridges found at the scene of the shooting. The owner of the
Subaru testified that he did not have gun cartridges in his car when it was stolen.
About two weeks later, Johnson was arrested for a separate offense and found
in possession of one of the firearms used to shoot Mack. The jury was informed that
Johnson had been convicted of murdering Mack.
In May 2019, police interviewed Thomas. The interview was recorded, and
the jury was shown portions of the video. During the interview, Thomas denied
being a member of 103 gang and denied knowing Johnson, claiming he had only met
him twice. He denied communicating with Johnson on November 13, 2018. Once
police left the room and Thomas had been placed under arrest, he made a phone call.
He told the person on the phone, “I’m not going to lie. I kind of think they caught
me, like, in my lie.”
The jury found Thomas guilty of murder as a party, and the trial court
sentenced him to 50 years’ imprisonment.
8 Sufficiency of the Evidence
On appeal, Thomas argues that the evidence is not sufficient to prove that he
was guilty of murder as a party. We disagree.
A. Standard of Review
We review legal sufficiency challenges under the standard set forth in Jackson
v. Virginia, 443 U.S. 307, 319 (1979); Fernandez v. State, 479 S.W.3d 835, 837
(Tex. Crim. App. 2016). Under this standard, we review “the evidence in the light
most favorable to the verdict and ask whether any rational fact-finder could have
found the elements of the charged offense beyond a reasonable doubt.” Fernandez,
479 S.W.3d at 837–38. “If a rational fact-finder could have so found, we will not
disturb the verdict on appeal.” Id. at 838.
Under the Penal Code, a person commits murder if he intentionally or
knowingly causes the death of an individual. TEX. PENAL CODE § 19.02(b)(1). Under
the Penal Code’s law of parties, a person is criminally responsible as a party to an
offense if the offense is committed by his own conduct, by the conduct of another
for which he is criminally responsible, or by both. Id. § 7.01(a). And a person is
criminally responsible for an offense committed by the conduct of another if, “acting
with intent to promote or assist the commission of the offense, he solicits,
encourages, directs, aids, or attempts to aid the other person to commit the offense.”
Id. § 7.02(a)(2).
9 “To establish guilt under the law of parties, the evidence must show that, at
the time of the offense, the parties were acting together, each contributing some part
towards the execution of their common purpose.” Barrientos v. State, 539 S.W.3d
482, 490 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (quoting Nelson v. State,
405 S.W.3d 113, 123 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d)). In
determining whether the evidence is sufficient, we “may look to ‘events before,
during, and after the commission of the offense.’” Gross v. State, 380 S.W.3d 181,
186 (Tex. Crim. App. 2012) (quoting Wygal v. State, 555 S.W.2d 465, 468–69 (Tex.
Crim. App. 1977)). We “may also rely on circumstantial evidence to prove party
status.” Gross, 380 S.W.3d at 186. “Each fact need not point directly to the guilt of
the defendant, as long as the cumulative effect of the facts are sufficient to support
the conviction under the law of parties.” Id. “While an agreement of the parties to
act together in a common design seldom can be proved by direct evidence, reliance
may be had on the actions of the parties, showing by either direct or circumstantial
evidence, an understanding and common design to do a certain act.” Rodriguez v.
State, 521 S.W.3d 822, 828 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (quoting
Barnes v. State, 62 S.W.3d 288, 297 (Tex. App.—Austin 2001, pet. ref’d)).
“Evidence is sufficient to convict under the law of parties ‘when the defendant
is physically present at the commission of the offense and encourages its commission
by acts, words or other agreement.’” Barrientos, 539 S.W.3d at 490 (quoting
10 Wooden v. State, 101 S.W.3d 542, 546 (Tex. App.—Fort Worth 2003, pet. ref’d)).
“However, mere presence of a person at the scene of a crime, or even flight from the
scene, without more, is insufficient to support a conviction as a party to the offense.”
Gross, 380 S.W.3d at 186. “Courts have repeatedly upheld convictions under the
law of parties when the evidence establishes that the defendant participated in the
commission of the offense by driving the getaway vehicle.” Barrientos, 539 S.W.3d
at 490; Rodriguez, 521 S.W.3d at 828–29 (listing cases holding same).
B. The evidence was sufficient to show Thomas was guilty of murder as a party.
The record reflects that the black Subaru used during the murder had been
stolen five days before the murder. Cell phone tower data showed Thomas’s cell
phone was near where the car was stolen at that time. Cell phone records also showed
that he was communicating with Johnson at the time the car was reported stolen. The
jury could reasonably infer that Thomas assisted with obtaining the getaway car for
the shooting by stealing the Subaru.
The jury could also reasonably conclude that Thomas helped plan the murder.
The evidence at trial included transcripts of messages between Thomas and Johnson.
Detectives who were experts in Houston gang activity testified, interpreting the slang
in the messages, and explaining the norms and behaviors of the gangs involved. The
jury could reasonably conclude that Johnson and Thomas messaged each other four
hours before the murder to confirm their plan to murder Mack. Johnson asked
11 Thomas, “Forsho we doin that???” and Thomas responded affirmatively. Thomas
mentioned that he was going to come “ash,” and Detective Miller testified that “ash”
meant killing. Thomas stated that he had his “gear” in his bag. Detective Thomas
testified that members of 103 gang kept guns and ski masks in bags, and that when
Thomas referred to “gear,” he meant his gun and ski mask. Thomas asked where
they were meeting “Fat Ass,” and Detective Miller testified that 103 gang members
referred to Mack as “Fat Ass.” Johnson responded that they were meeting him at
“Lamar.” The evidence showed that Mack was later shot outside Lamar High
School. Johnson asked Thomas to call “Rayay” and to “check on the wheels.”
Thomas’s cell phone records showed that he then made a call to a number saved with
a similar name. Johnson messaged Thomas: “How the bag gone stay or u already
did it yesterday?” Thomas responded that he was going to close it in a door. The jury
saw photographs and heard testimony that the back window of the Subaru was
broken and that it was covered with a black plastic bag, which was closed into the
car door.
Detective T. Miller, an expert in gang investigations, explained that Thomas
and Johnson were “hall of fame” gang members of the 103 gang. The jury also
viewed Johnson’s text message stating that the hall of fame members are himself,
“Cobi, Dman, and Bravo.” Detective Miller testified that “Dman” was a nick name
for Thomas and that “Bravo” referred to Braveon Terry. Mack was associated with
12 a rival gang, and the two gangs committed retaliatory killings against one another.
November 13, the date of the murder, was known as “Brae Day,” a time of
heightened killing by 103 gang members in commemoration of Braveon Terry’s
death. Thomas had messaged a few days before the murder that he needed an outfit
for Brae Day.
Additional testimony pointed toward Thomas’s involvement in the murder.
Detective Miller testified that in October, a month before the murder, Thomas and
Johnson had a conversation on Instagram where Thomas provided instructions on
how cars could be driven in a drive by shooting to easily execute rival gang
members. DNA evidence showed that Thomas could not be excluded as the
contributor to DNA found on the interior driver’s side door of the Subaru.
Surveillance video showed the shooters getting back into the Subaru after Mack was
shot. The Subaru then drives quickly away from the scene.
High school attendance records showed that Thomas was present in class for
first and second period on November 13, 2018. He was absent for third period,
beginning around 10:15 a.m. Detective Miller testified that Thomas initially told him
that he left school that day to get his sick child from daycare. Detective Miller
obtained records from the daycare, showing when bottles, diaper changes, and naps
occurred throughout the day. Thomas’s child was not sick on November 13 and was
at daycare for the day. Cell phone tower data showed that on the day of the shooting,
13 at 11:15 a.m., Thomas was near the same address where the Subaru was eventually
recovered after the shooting. A communications intelligence expert testified that
Thomas’s cell phone had no activity from 11:22 a.m. until 12:52 p.m. The expert
stated that this is consistent with the phone being turned off during that time.
On the day of the shooting, at around 1:30 p.m., a little more than an hour
after Mack was murdered, Thomas sent Johnson a screenshot of a news station’s
update about the shooting. The update mentions that the car involved had a black
plastic bag covering a rear passenger window. Johnson responded that the police
knew the car so “we need new wheels” and that police knew what they had on at the
time of the murder. Thomas messaged Johnson, “IKIK my boy [pin drop emoji].”
Detective Miller testified that 103 gang members refer to locating and then killing a
rival gang member as “getting the drop on” the rival gang member. The jury could
infer that the pin drop emoji sent by Thomas referred to a killing. Cell phone records
showed that on the day of the shooting, Thomas was at the location that the Subaru
was recovered both before and after the murder.
Finally, the evidence included a video of Thomas’s interview with police
detectives in May 2019. Near the end of the video Thomas is alone in the
interrogation room. He makes a phone call and tells someone that the only evidence
the police have is his Instagram messages and says: “I’m not going to lie . . . . I kind
of think they caught me, like, in my lie.”
14 The jury reasonably could have found that Thomas was guilty of murder under
the law of parties because there was evidence that Thomas helped obtain and prepare
the getaway car used in the murder, helped maneuver the car during the murder, or
drove the getaway car from the scene. Considering the evidence in the light most
favorable to the verdict, a reasonable factfinder could conclude that Thomas was
guilty of murder as a party.
We overrule Thomas’s issue regarding the sufficiency of the evidence.
Admission of Evidence
Thomas’s remaining two issues concern the admission of evidence. In his first
issue, Thomas contends that the trial court erred by admitting evidence of an
extraneous offense. He argues that the evidence was not admissible under Rule
404(b) and should have been excluded under Rule 403. In the next issue, he argues
that the trial court erred by admitting “voluminous” evidence of the activities of the
103 gang in violation of the same rules.
A. Applicable Law
We review a trial court’s ruling on the admission of evidence for an abuse of
discretion. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). A trial
court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to
any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.
15 Crim. App. 1990). A trial court’s decision to admit evidence will be upheld if it is
“within the zone of reasonable disagreement.” Devoe, 354 S.W.3d at 469.
Texas Rule of Evidence 404(b) expressly provides that evidence of other
crimes, wrongs, or acts is not admissible to prove the character of the defendant to
show he acted in conformity therewith. TEX. R. EVID. 404(b)(1). Extraneous offense
evidence may be admissible, however, for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident. Id. 404(b)(2). Even if evidence is admissible under Rule 404, the trial court
may exclude the evidence if its probative value is substantially outweighed by the
danger of unfair prejudice. TEX. R. EVID. 403.
A trial court’s ruling on the admission of extraneous offense evidence is
generally within the zone of reasonable disagreement “if the evidence shows that 1)
an extraneous transaction is relevant to a material, non-propensity issue, and 2) the
probative value of that evidence is not substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury.” De La Paz v. State,
279 S.W.3d 336, 344 (Tex. Crim. App. 2009). We will uphold a trial court’s
evidentiary ruling if it is correct on any theory of law applicable to that ruling, even
if the trial court gives the wrong reason for the right ruling. Id.
16 B. Extraneous Offense Evidence
Thomas contends that the trial court erred by admitting evidence of an
extraneous offense. The evidence at trial included that the Subaru used during the
murder was stolen at gunpoint a few days before the murder. On appeal, Thomas
argues that while evidence that the car was stolen in the days before the murder was
admissible and relevant, evidence that “[the complainant] was the victim of an
aggravated robbery carjacking with guns is both not relevant and highly prejudicial
to appellant.”
At a pretrial hearing, the trial court ruled that the parties could refer to the fact
that the Subaru was stolen at gunpoint but could not use the phrase “aggravated
robbery.” At trial, the State asked Detective Miller about his investigation of the
Subaru used in the murder. Thomas’s counsel approached the bench to determine
what evidence the State was attempting to offer. After a brief discussion between
counsel, testimony continued. Detective Miller testified that his investigation
revealed that five days before the murder, the Subaru was taken from its owner at
gunpoint. The driver was rear ended at night. When the driver stopped and got out
of the car, someone pointed a gun at him and took the car. Defense counsel never
objected during this portion of Detective Miller’s testimony.
The State also called the owner of the Subaru to testify. He testified that he
was rear ended in the Subaru by a gold Camry in November 2018. Two people
17 wearing masks got out of the Camry, pointed guns at him, took his car keys, got in
his car, and drove off. The driver of the Camry also sped off. Thomas’s counsel did
not object during the testimony.
The next day, Thomas’s counsel stated that he was objecting again to the “11/9
incident,” arguing that the evidence of aggravated robbery was inadmissible as
substantially more prejudicial than probative and a violation of Thomas’s due
process rights. The trial court overruled the objection. Thomas’s counsel asked for a
running objection, and the court agreed.
To preserve error, a party must object each time inadmissible evidence is
offered or obtain a running objection. James v. State, 506 S.W.3d 560, 566 (Tex.
App.—Houston [1st Dist.] 2016, no pet.); see also TEX. R. APP. P. 33.1(a)(1)
(providing that party does not preserve an issue for appellate review if he fails to
object in trial court at time evidence is offered). On appeal, Thomas claims his trial
counsel made an objection to evidence of the aggravated robbery, but the brief cites
only to the pretrial motion in limine hearing. A motion in limine does not preserve
an issue for appellate review. Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App.
2008) (“A motion in limine . . . is a preliminary matter and normally preserves
nothing for appellate review.”).
At oral argument, Thomas’s counsel argued that trial counsel’s objection
made before opening statement preserved the issue for our review, but the record
18 reflects that trial counsel objected only to the State mentioning the extraneous
offense of “aggravated robbery” during the opening statement that immediately
followed. Trial counsel did not make contemporaneous objections to testimony that
the car was taken at gunpoint during Detective Miller’s or the owner’s testimony.
When counsel objected the next day to the “11/9” incident,” the objection was
untimely. “If a defendant fails to object until after an objectionable question has been
asked and answered, and he can show no legitimate reason to justify the delay, his
objection is untimely, and any claim of error is forfeited.” Luna v. State, 268 S.W.3d
594, 604 (Tex. Crim. App. 2008). Thomas did not preserve this issue for our review.
C. Gang Affiliation Evidence
Thomas also argues that the trial court abused its discretion in admitting
cumulative evidence concerning Thomas’s gang activity and affiliation. He contends
that the “voluminous” evidence of the activities of the 103 gang was extremely
prejudicial. He concedes that the State did have “some need” to present Thomas’s
and Johnson’s 103 gang membership, but he argues that the amount of gang evidence
was cumulative, and the time spent on it was substantially more prejudicial than
probative. Thomas also contends that the gang was needlessly presented as a “super
violent gang involved in violent extraneous conduct” and that the evidence should
have been presented in a less prejudicial manner.
19 This issue is inadequately briefed because Thomas’ brief does not contain
appropriate citations to the record. TEX. R. APP. P. 38.1(i). Thomas states in his brief
that gang-related evidence was presented through several specific law enforcement
officers and through “all of the evidence exhibits offered and admitted through these
officers.” But rather than identify the specific evidence he complains about, he cites
to the reporter’s record volumes for all the trial testimony.
Thomas admits that gang-affiliation evidence was admissible, but he argues
that the cumulative effect of the evidence was prejudicial. He does not state which
pieces of evidence or which testimony was substantially more prejudicial than
probative. See TEX. R. EVID. 403. He does not state at what point during the trial the
gang evidence became cumulative or overly prejudicial. He likewise does not cite to
specific times in the record where trial counsel objected to the admission of gang-
related evidence and the objection was overruled. TEX. R. APP. P. 33.1(a) (providing
that to preserve error for appeal, appellant must object in trial court and trial court
must rule on request).
Even if Thomas had properly briefed and preserved the error, the trial court
did not err in admitting evidence of Thomas’s gang affiliation. Gang evidence is
admissible “when it has some underlying value to show motive to commit the
charged offense.” Barrientos, 539 S.W.3d at 494 (quoting Jackson v. State, 314
S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.] 2010, no pet.). “Evidence showing
20 motive to commit murder is a significant circumstance indicating guilt, and it is
therefore relevant and admissible.” Barrientos, 539 S.W.3d at 493 (quoting Lopez v.
State, 200 S.W.3d 246, 251 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d).
Thomas’s affiliation with the 103 gang was relevant to show motive and intent for a
gang-related crime. The record reflects that after Thomas’s counsel first objected to
the use of gang-affiliation evidence, the trial court urged the State to reduce the
number of photos offered as evidence to show gang affiliation. After a brief recess,
the State offered fewer pictures into evidence, and the trial court considered
Thomas’s objections based on Rule 403 to each individual photograph. The court
noted that the State had reduced the number of photographs and allowed seven
photographs into evidence over Thomas’s objections. To violate Rule 403, evidence
must be more than just prejudicial, it must be unfairly prejudicial. See TEX. R. EVID.
403. In this case, the trial court did not err in finding that the probative value of gang-
affiliation evidence was not substantially outweighed by the danger of unfair
prejudice.
We overrule Thomas’s issues related to the admission of evidence.
Conclusion
We affirm the judgment of the trial court.
21 Peter Kelly Justice
Panel consists of Justices Kelly, Landau, and Rivas-Molloy.
Do not publish. TEX. R. APP. P. 47.2(b).