Jesus Zavala v. State

• Court: Court of Appeals of Texas
• Decided: February 23, 2012
• Docket: 13-10-00254-CR
• Status: Published

Opinion

NUMBERS

13-10-00254-CR 13-10-00255-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

JESUS ZAVALA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 377th District Court of Victoria County, Texas.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Vela Memorandum Opinion by Justice Garza

At the beginning of his jury trial, appellant, Jesus Zavala, pleaded guilty to two

counts of unlawful delivery of more than one-fourth ounce but less than five pounds of

marihuana, a state jail felony offense. See TEX. HEALTH & SAFETY CODE ANN. § 481.120(a), (b)(3) (West 2010). After trial, the jury found him guilty of one count of

engaging in criminal activity, a second-degree felony. See TEX. PENAL CODE ANN. §

71.02(a)(5), (b) (West Supp. 2010).1 The trial court imposed punishment at (1) two

years’ confinement in state jail and a $500.00 fine for each count of unlawful delivery of

marihuana, and (2) eighteen years’ imprisonment and a $9,000.00 fine for engaging in

criminal activity. The court ordered the sentences to run concurrently. 2 By four issues,

appellant contends: (1) the evidence is insufficient to support his conviction for

engaging in criminal activity; (2) the trial court erred in admitting certain evidence; (3)

juror misconduct occurred when a juror engaged in an unauthorized conversation with a

State witness; and (4) the State engaged in improper jury argument. We affirm.

I. BACKGROUND

Appellant was indicted for engaging in organized criminal activity as follows:

On or about [June 9, 2009], . . . [Zavala] as a principal or party . . . did then and there, as a member of a criminal street gang, to wit: “Hermanos Pistoleros Latinos” aka “Hermandad Pistoleros Latinos” and “HPL” did then and there commit the offense of POSSESSION OF MARIJUANA;

And [Zavala] as a member of a criminal street gang[,] to wit: “Hermanos Pistoleros Latinos” aka “Hermandad Pistoleros Latinos” and “HPL” did then and there intentionally or knowingly possess marijuana in an amount of fifty pounds or less but more than 5 pounds through forgery, fraud, misrepresentation, or deception.

Trial testimony established that appellant’s brother, Raul Gonzales, was the

“general” for the Victoria, Texas region of the criminal street gang known as Hermanos

1 Although certain subsections of section 71.02 have been amended, the amendments are inapplicable to this case, and therefore we cite the current version of the statute. Appellant was charged with four counts of engaging in organized criminal activity. During trial, the State abandoned counts one and two and the trial court granted an instructed verdict as to count three. 2 Appellant pleaded guilty to two counts of unlawful delivery of marihuana in appellate cause number 13-10-254-CR, and the jury found him guilty of engaging in organized criminal activity in appellate cause number 13-10-255-CR. The cases were consolidated for trial and on appeal.

2 Pistoleros Latinos (“HPL”).3 Bryan Jimenez, a member of HPL who became an

undercover informant for police after his arrest for possession of marihuana on May 23,

2009, lived next door to appellant. Jimenez testified that on June 9, 2009, he observed

appellant and Raul moving a large quantity of marihuana into appellant’s house.

Jimenez contacted Sam Eyre, then a sergeant with the Special Crimes Unit of the

Victoria Police Department, and Jimenez’s supervisor. Jimenez went into appellant’s

house and observed appellant, Raul, and Raul’s son, Jeremiah Gonzales, repackaging

the marihuana into smaller zip-lock bags. Jimenez reported this information to Sergeant

Eyre.

Later that day, Jimenez testified that he made a controlled purchase of a half

pound of marihuana from appellant at appellant’s house. Jimenez was wearing a “body

wire” during the transaction and turned the marihuana over to the police immediately

after the purchase. Later that same evening, Jimenez testified that he observed

marihuana being loaded from appellant’s house into Raul’s Yukon sport-utility vehicle.

Jimenez reported this information to the police. Sergeant Eyre and several other

officers set up surveillance of appellant’s residence. The officers observed the Yukon

leaving appellant’s residence. Although the officers did not know who was inside the

vehicle, Jimenez testified that the occupants were Raul and Jeremiah. Acting on

information from Jimenez, Sergeant Eyre requested that a patrol officer execute a traffic

stop of the Yukon. Shortly after leaving appellant’s residence, Officer Marc Pullin

stopped the Yukon for a traffic violation. Raul and Jeremiah were arrested for

3 The criminal street gang was also referred to as “Hermandad Pistoleros Latinos.” We note that in an earlier opinion, this Court affirmed Raul Gonzales’s convictions for possession of marihuana and organized criminal activity. See Gonzales v. State, No. 13-09-640-CR, 2011 Tex. App. LEXIS 9231, at *2 (Tex. App.—Corpus Christi Nov. 22, 2011, no pet.) (mem. op., not designated for publication).

3 possession of marihuana. Jimenez testified that approximately an hour after Raul and

Jeremiah left appellant’s house, appellant told him about the arrest.

Jimenez testified that on June 14, 2009, he made another controlled purchase of

a half pound of marihuana from appellant at appellant’s house. Jimenez was wearing a

“body wire” during the transaction.

II. SUFFICIENCY OF THE EVIDENCE

By his first issue, appellant contends that the evidence is legally and factually

insufficient to support his conviction for engaging in organized criminal activity.

Specifically, appellant argues that the evidence is insufficient to establish that: (1) he

intended to participate in a criminal street gang; (2) he was involved in the distribution of

drugs on June 9; and (3) the substance confiscated on June 9 was marihuana.

Appellant also argues that the evidence was insufficient to corroborate the testimony of

accomplice and covert-informant witnesses as required to sustain his conviction for the

offense. See TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005) (requiring accomplice

witness testimony to be corroborated by evidence tending to connect the defendant with

the offense committed); see id. art. 38.141 (requiring covert witness testimony to be

corroborated by evidence tending the connect the defendant with the offense

committed). Appellant’s first issue thus raised two distinct legal theories, and we will

address each theory in turn. See Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim.

App. 2007) (distinguishing sufficiency review from review under accomplice-witness

rule); Cantelon v. State, 85 S.W.3d 457, 460 (Tex. App.—Austin 2002, no pet.) (“A

challenge of insufficient corroboration is not the same as a challenge of insufficient

evidence to support the verdict as a whole.”).

4 A. Standard of Review and Applicable Law

The court of criminal appeals has held that there is “no meaningful distinction

between the Jackson v. Virginia legal sufficiency standard and the Clewis factual-

sufficiency standard” and that the Jackson standard “is the only standard that a

reviewing court should apply in determining whether the evidence is sufficient to support

each element of a criminal offense that the State is required to prove beyond a

reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 902–03, 912 (Tex. 2010) (plurality

op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Accordingly, we review

claims of evidentiary insufficiency under “a rigorous and proper application of the

Jackson standard of review.” Id. at 906–07, 912. Under the Jackson standard, “the

relevant question is whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319; see Brooks, 323 S.W.3d

at 898–99 (characterizing the Jackson standard as: “Considering all of the evidence in

the light most favorable to the verdict, was a jury rationally justified in finding guilt

beyond a reasonable doubt”). The fact-finder is the exclusive judge of the credibility of

witnesses and of the weight to be given to their testimony. Anderson v. State, 322

S.W.3d 401, 405 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (citing Lancon v.

State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008)). Reconciliation of conflicts in the

evidence is within the fact-finder's exclusive province. Id. (citing Wyatt v. State, 23

S.W.3d 18, 30 (Tex. Crim. App. 2000)). We must resolve any inconsistencies in the

testimony in favor of the verdict. Id. (citing Curry v. State, 30 S.W.3d 394, 406 (Tex.

Crim. App. 2000)).

5 In reviewing the legal sufficiency of the evidence, we look at events occurring

before, during, and after the commission of the offense, and we may rely on actions of

the appellant that show an understanding and common design to do the prohibited act.

Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). Each fact need not point

directly and independently to the appellant’s guilt, so long as the cumulative effect of all

the incriminating facts are sufficient to support the conviction. Id.

We measure the legal sufficiency of the evidence by the elements of the offense

as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,

314 (Tex. App.—Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997)). “Such a charge [is] one that accurately sets out the law, is

authorized by the indictment, does not unnecessarily increase the State’s burden of

proof or unnecessarily restrict the State's theories of liability, and adequately describes

the particular offense for which the defendant was tried.” Villarreal v. State, 286 S.W.3d

321, 327 (Tex. Crim. App. 2009) (quoting Malik, 953 S.W.2d at 240).

The Texas Court of Criminal Appeals recently laid out the standard of review for

sufficiency of non-accomplice evidence as follows:

[U]nder Texas Code of Criminal Procedure Article 38.14, a conviction cannot stand on an accomplice witness’s testimony unless the testimony is corroborated by other, non-accomplice evidence that tends to connect the accused to the offense. Evidence that the offense was committed is insufficient to corroborate an accomplice witness’s testimony. And an accomplice’s testimony cannot be corroborated by prior statements made by the accomplice witness to a third person.

****

When reviewing the sufficiency of non-accomplice evidence under Article 38.14, we decide whether the inculpatory evidence tends to connect the accused to the commission of the offense. The sufficiency of non-accomplice evidence is judged according to the particular facts and

6 circumstances of each case. The direct or circumstantial non-accomplice evidence is sufficient corroboration if it shows that rational jurors could have found that it sufficiently tended to connect the accused to the offense. So when there are conflicting views of the evidence—one that tends to connect the accused to the offense and one that does not—we will defer to the fact[-]finder’s resolution of the evidence. Therefore, it is not appropriate for appellate courts to independently construe the non- accomplice evidence.

Smith v. State, 332 S.W.3d 425, 439, 442 (Tex. Crim. App. 2011) (internal citations

omitted); see TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005).

Proof that the accused was at or near the scene of the crime at or about the time

of its commission, when coupled with other suspicious circumstances, may tend to

connect the accused to the crime so as to furnish sufficient corroboration to support a

conviction. Brown v. State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984). Evidence

that the defendant was in the company of the accomplice near the time or place of the

offense is also proper corroborating evidence. McDuff v. State, 939 S.W.2d 607, 613

(Tex. Crim. App. 1997). If the combined weight of the non-accomplice evidence tends

to connect the defendant to the offense, then the requirement of article 38.14 has been

fulfilled. Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999).

Article 38.141 of the Texas Code of Criminal Procedure, entitled “Testimony of

Undercover Peace Officer or Special Investigator,” provides:

(a) A defendant may not be convicted of an offense under Chapter 481, Health and Safety Code, on the testimony of a person who is not a licensed peace officer or a special investigator but who is acting covertly on behalf of a law enforcement agency or under the color of law enforcement unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.

(b) Corroboration is not sufficient for purposes of this article if the corroboration only shows commission of the offense.

TEX. CODE CRIM. PROC. ANN. art. 38.141(a), (b) (West 2005).

7 We review a claim challenging the sufficiency of evidence to corroborate the

testimony of a covert witness under the same statutorily required standard that is

applied to a challenge of the testimony of an accomplice. Malone v. State, 253 S.W.3d

253, 258 (Tex. Crim. App. 2008); see TEX. CODE CRIM. PROC. ANN. art. 38.14 (pertaining

to corroboration required of accomplice witness). Under this standard, a reviewing court

must exclude the testimony of a covert agent from consideration when weighing the

sufficiency of corroborating evidence under article 38.141(a) and examine the remaining

evidence to determine whether the evidence “tends to connect” the defendant to the

commission of the offense. Malone, 253 S.W.3d at 258. In reviewing the specific facts

of each case to determine whether evidence is sufficient to corroborate covert-agent

testimony, we may not consider accomplice-witness testimony that needs to be

corroborated under article 38.14. Patterson v State, 204 S.W.3d 852, 859 (Tex. App.—

Corpus Christi 2006, pet. ref’d) (en banc).

Section 71.02(a) of the penal code states, in pertinent part:

§ 71.02 Engaging in Organized Criminal Activity

(a) A person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, the person commits or conspires to commit one or more of the following:

....

(5) . . . unlawful possession of a controlled substance or dangerous drug . . . .

TEX. PENAL CODE ANN. § 71.02(a)(5) (West Supp. 2010). Section 71.01 of the penal

code defines “criminal street gang” as “three or more persons having a common

identifying sign or symbol or an indentifiable leadership who continuously or regularly

8 associate in the commission of criminal activities.” Id. § 71.01(d) (West 2003). Thus,

under section 71.02(a), a defendant is guilty of engaging in organized criminal activity

when the State proves the first element, that the defendant committed a specific offense

that is listed under that chapter—here, possession of a controlled substance—and the

second element, that the defendant committed that offense “with the intent to establish,

maintain, or participate . . . as a member of a criminal street gang.” See id. §

71.02(a)(5). Appellant challenges the sufficiency of the evidence concerning both

elements: (1) the underlying offense that he unlawfully possessed marihuana; and (2)

that he committed the offense with the intent to participate as a member of a criminal

street gang.

We note that the indictment charged appellant with the offense of engaging in

organized criminal activity “as a principal or party as defined in §7.02 of the Texas Penal

Code . . . .” See TEX. PENAL CODE ANN. § 7.01(a) (West 2003) (stating that a person is

guilty 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”). 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). In determining whether an individual is a party to an offense and bears

criminal responsibility, the court may look to events before, during, and after the

commission of the offense. Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App.

1987). Participation in an enterprise may be inferred from the circumstances and need

not be shown by direct evidence. Id. Circumstantial evidence may be sufficient to show

9 that one is a party to an offense. Id.

Here, the jury charge did not include an instruction on the law of parties.

However, using a hypothetically correct jury charge, we must determine whether the

evidence is sufficient to prove that appellant committed the offense of possession of

marihuana “with the intent to . . . participate . . .as a member of a criminal street gang” 4

and that appellant was criminally responsible for the possession of marihuana

committed by Raul and Jeremiah, if while acting with intent to promote or assist the

commission of the offense, appellant solicited, encouraged, directed, aided, or

attempted to aid Raul and Jeremiah to commit the offense.

A person commits the offense of unlawful possession of marihuana if he

knowingly or intentionally possesses a usable quantity of marihuana without legal

authority to do so. See TEX. HEALTH & SAFETY CODE ANN. § 481.121 (West 2010). To

prove the unlawful-possession-of-a-controlled-substance element, the State was

required to prove appellant (1) exercised control, management, or care over the

marihuana; and (2) knew the substance possessed was contraband. See Blackman v.

State, 350 S.W.3d 588, 594 (Tex. Crim. App. 2011). Because appellant was not in

exclusive possession of the vehicle where the marihuana was found, the State was also

required to prove beyond a reasonable doubt that appellant’s connection to the

marihuana “was more than just fortuitous.” See id. (quoting Poindexter v. State, 153

4 We also note that the indictment omitted the requisite mental state, requiring only that appellant commit the underlying offense “as a member of a criminal street gang.” The jury charge, however, correctly instructed the jury that “a person commits the offense of ENGAGING IN ORGANIZED CRIMINAL ACTIVITY if, with intent to participate as a member of a criminal street gang, the person intentionally or knowingly possesses a usable quantity of marijuana through deception and the amount of marijuana possessed is 50 pounds or less but more than 5 pounds.” See Curiel v. State, 243 S.W.3d 10, 16 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (noting that even if both indictment and jury charge omit the requisite mental state, sufficiency review is conducted using a hypothetically correct jury charge).

10 S.W.3d 402, 406 (Tex. Crim. App. 2005)). To prove that a defendant is criminally

responsible for possession of a controlled substance as a party, the evidence must

show that (1) another person possessed the contraband and (2) with the intent to

promote or assist the commission of the offense, appellant solicited, encouraged,

directed, aided, or attempted to aid the other’s possession. Roberson v. State, 80

S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d); see TEX. PENAL CODE

ANN. § 7.02(a)(2). With respect to the underlying offense, appellant challenges the

evidentiary sufficiency of the “unlawful possession” element and that the substance

confiscated on June 9, 2009 was, in fact, marihuana.

B. Legal Sufficiency

The State presented the testimony of numerous witnesses, including two

accomplice witnesses,5 one covert witness (Jimenez), and law enforcement officers

involved in the case. The defense presented no witnesses. We detail the pertinent

evidence below.

1. The Evidence

a. Elvis Segura6

Segura testified that at the time of his arrest, he was a “sergeant” in the HPL.

The HPL is involved in the business of selling narcotics and other criminal activity. HPL

“rules” dictate that if a member cooperates with law enforcement, the member and/or

his family members will be killed. Segura stated that he would be “in fear” “[f]or the rest

5 The State planned to present the testimony of accomplice witness Jeremiah Gonzales, who had made an agreement with the State to testify. However, Jeremiah breached the agreement and refused to testify. 6 It is undisputed that Segura and Alfredo DeLeon were accomplices. Each made an agreement with the State in exchange for their testimony.

11 of [his] life.” Segura purchased marihuana twice from appellant at appellant’s house.

Segura frequently visited Jimenez’s home and observed traffic related to the sale of

marihuana at appellant’s house. Regular shipments of HPL marihuana were broken

down into smaller packages at Raul’s or appellant’s house. HPL guns were also stored

at appellant’s house. HPL keeps records of marihuana sales and transactions by its

members. Appellant obtained marihuana from Raul, like other HPL members. On

about six occasions, Segura saw appellant pick up marihuana from Raul’s house.

Appellant sold marihuana for Raul.

On May 23, 2009, Raul ordered Segura and Jimenez to pick up a package at a

designated residence and bring it to Raul at appellant’s house.7 Segura and Jimenez

did as instructed; after Jimenez picked up the package and got back in Segura’s truck,

Segura began driving toward appellant’s house. The police had observed the retrieval

of the package and shortly thereafter, stopped Segura’s vehicle and arrested Segura,

his wife, Teresa, and Jimenez for possession of marihuana. In June 2009, Segura

testified that appellant had been an “associate,” but was not yet a “prospecto” in HPL.

On cross-examination, Segura stated that on May 23, 2009, appellant was not a

member of HPL, but was “just an associate.” Because appellant was not a member, he

did not attend HPL meetings; however, it was discussed at meetings that appellant was

moving marihuana for Raul. The marihuana that appellant sold to Segura belonged to

HPL. On re-direct examination, Segura stated that appellant regularly spent time with

HPL members, was involved with and aided HPL in its business, shared in the risks and

profits associated with HPL’s criminal enterprises, stored guns and marihuana for HPL,

7 Segura’s wife, Teresa, was with him when he was ordered to pick up the package. The residence where the package was picked up was the residence of Ernest Gonzales, another of Raul’s brothers.

12 and had the protection of HPL. Although appellant was an associate of HPL in June

2009, he became a “prospecto” in November 2009.

b. Bryan Jimenez

Jimenez testified that after his arrest on May 23, 2009, he agreed to be a covert

informant for the State under the supervision of Sergeant Eyre and the Special Crimes

Unit. Jimenez agreed to make “controlled buys” of drugs, and described the procedure

utilized for the “controlled buys.” The officers first searched Jimenez’s vehicle and

attached a recording device to his body. Jimenez would then place a call to a subject—

in this case, appellant—arranging the purchase of marihuana; the call was recorded.

Jimenez then drove his vehicle to appellant’s house to make the purchase. A police

officer rode with Jimenez in Jimenez’s vehicle, but stayed in the vehicle while Jimenez

went inside to make the purchase. Other officers were nearby but out of sight. The

recording device both recorded the transaction and broadcast it over a radio signal so

the officers could listen to the transaction. Jimenez used money provided by the police

to make the purchase. After the transaction, Jimenez would return to the vehicle and

hand over the drugs to the officer. Jimenez would meet other officers at a rendezvous

point, where his vehicle was searched again. Finally, Jimenez provided the police with

a written report describing the transaction.

Jimenez met appellant when he began working for the construction company run

by appellant and Raul. Jimenez was frequently paid for his work with drugs.

Eventually, Jimenez became an “associate” of HPL. Jimenez defined an associate as

“someone that is not particularly in a gang, but has dealings with them, to sell drugs or

pick up money—You know, just pretty much anything that gang members do, but not

13 really a member at the time.” By engaging in criminal activities, associates assisted the

gang and shared in the risks and profits associated with the gang’s activities. Some

associates became “esquinas” which is a low rank within the gang. A “prospecto” is a

higher rank, which requires giving a promise or oath to the gang. The rank above

“prospecto” is “carnal,” which means that a person has proven himself and has voting

rights within the gang.

On May 23, 2009, Jimenez was an “esquina” in HPL. Appellant came to

Jimenez’s house and asked him to come next door because Raul had a task for him to

perform. Raul asked Jimenez to retrieve a package for him from a house that belonged

to Raul’s brother, Ernest. Segura joined the conversation at appellant’s house and was

asked to drive Jimenez to pick up the package. Jimenez was to bring the package back

to appellant’s house. In exchange for performing this task, Jimenez’s debt of

approximately $480 to Raul would be “wiped clean.” Jimenez did not know that Ernest’s

house was under surveillance by the police. Even if he had known, he might have

agreed to retrieve the package because refusing a request from Raul was “not an

option.” Raul’s wife, Cynthia, kept records reflecting attendance, dues payments, and

payment of profits to HPL.

Jimenez testified that the marihuana he purchased from appellant belonged to

HPL. Appellant obtained marihuana from Raul and sold it for HPL. When a marihuana

shipment was received, it would be broken down and repackaged at Raul’s house or

appellant’s house. After he became a covert informant after his arrest, Jimenez shared

information with the police. On June 9, 2009, when Jimenez made a controlled

purchase of marihuana from appellant, he followed the procedure described earlier.

14 When he made the June 9 purchase, he observed that appellant had approximately ten

pounds of marihuana at his house. After he met with officers at the rendezvous point

and made his report, Jimenez returned home. He observed appellant and Raul taking a

large quantity of marihuana into appellant’s home.8 Jimenez reported this information to

Sergeant Eyre. He went over to appellant’s house and observed appellant, Raul, and

Jeremiah breaking the marihuana into smaller amounts. Later that evening, Jimenez

saw appellant, Raul, and Jeremiah loading the marihuana into Raul’s Yukon. 9 He saw

Raul and Jeremiah leave appellant’s house in the Yukon. An hour or so later, appellant

told Jimenez that Raul and Jeremiah had been stopped on a traffic stop and arrested.

A week or so later, appellant obtained Raul’s Yukon from the dealer and began driving

it. Using the same procedure used on the earlier purchase, Jimenez made another

“controlled purchase” of a half pound of marihuana from appellant on June 14, 2009.

The purchase was made at appellant’s house; an officer stayed in Jimenez’s vehicle

when Jimenez went inside. Jimenez also wore a “wire” to a later HPL meeting, at which

there was a discussion about the need to pay the HPL suppliers for the confiscated

marihuana. Appellant did not attend that meeting; however, he interrupted the meeting

to convey a phone call to Jimenez from another HPL member. At that meeting,

Jimenez was promoted in rank from “prospecto” to “carnal” because the HPL members

believed Jimenez had remained silent after his May 23, 2009 arrest. Jimenez testified

that appellant was in charge of a gang of adolescent recruits for HPL.

8 Jimenez later clarified that the marihuana was delivered to appellant’s house before he made the controlled purchase. 9 Another individual, nicknamed “Bullnose,” was present and looking out for law enforcement during the loading.

15 On cross-examination, Jimenez stated that as an “associate” of HPL, appellant

was not a member, but was “one step closer to a member.” On re-direct examination,

Jimenez identified a written two-page renunciation form to be completed if a member

wished to renounce membership in HPL. The form requests information regarding

names and addresses of the member’s family. Jimenez testified that the reason HPL

requests contact information for a member’s family is, “[b]ecause once you leave the

organization, sir, you’re a dead man. They know where to find you and where to find

your family.” Jimenez had never seen anyone fill out such a form. Jimenez testified

that even though appellant was an “associate,” he had more “say so” and access to

information than most other full members because of Raul’s rank in HPL.

c. Officer Gary Wayne Smejkal

Officer Smejkal, formerly an officer with the Victoria Police Department, testified

that he learned of appellant through shared conversations with other law enforcement

officers concerning gang activity in the area.

d. Officer Bryan Dowden

Officer Dowden, an officer with the Special Crimes Unit of the Victoria Police

Department, was involved in the investigation involving Jimenez as a covert informant.

Three officers were actively involved in the investigation. During the investigation,

Jimenez provided the police with records obtained from HPL. Officer Dowden testified

that appellant and his relatives are confirmed members of HPL. He stated that

appellant does business with HPL, receives protection from and provides assistance to

HPL, and shares in HPL profits. Officer Dowden did not know appellant’s rank within

HPL. On cross-examination, Officer Dowden admitted that he was not a gang expert

16 and that his opinion about appellant was based on information obtained from Jimenez

and the undercover drug purchases conducted with Jimenez. Officer Dowden admitted

that appellant was not named on any of the HPL documents obtained by Jimenez.

Officer Dowden stated that he monitored the “body wire” audio of the June 9, 2009

controlled buy between Jimenez and appellant. Officer Dowden testified that he was

able to distinguish appellant’s voice during the transaction. On June 9, 2009, prior to

the controlled buy, the police received information that a shipment of marihuana was

received at appellant’s house. Pursuant to the information, the police had set up

surveillance at appellant’s house. Officer Dowden stated that the officers observed the

Yukon at appellant’s house and departing from the house. Officer Dowden said that he

also monitored the “wire” worn by Jimenez during the June 14, 2009 controlled buy from

appellant. Officer Dowden was able to hear the transaction as it occurred and

recognized appellant’s voice as the person who sold Jimenez the marihuana. After the

controlled buy, the officers left the vicinity of appellant’s residence. They returned,

however, after Jimenez alerted them that the marihuana was being loaded into the

Yukon. According to Officer Dowden, by the time the officers set up surveillance on

appellant’s house, the marihuana had been loaded into the Yukon.

On cross-examination, Officer Dowden said that during the controlled buy, he

was monitoring the wire and was approximately a block away from the residence. From

his position, he could see vehicles coming to or leaving appellant’s residence, but could

not see the residence.

e. Alfredo DeLeon IV

DeLeon testified that he was a “captain” in HPL. He stated that appellant is

17 involved in HPL business, including the storage, distribution, and sale of marihuana. On

some occasions, appellant attended HPL meetings. DeLeon stated that HPL paid

between $100 to $150 per pound of marihuana and sold it for $500 to $600 per pound.

After a shipment of marihuana was repackaged, it would be stored at appellant’s house

or Jimenez’s house. In May or June of 2009, appellant was an “esquina” in HPL.

Appellant also stored weapons for HPL. DeLeon stated that Raul provided appellant

with a vehicle to collect debts for HPL. Appellant had extensive knowledge—more

knowledge than higher-ranking HPL members—about HPL’s marihuana trade.

On cross-examination, DeLeon said that as an “esquina,” appellant was required

to make a pledge to HPL. DeLeon confirmed that appellant’s name is not listed on any

of the HPL documents.

f. Sergeant Sam Eyre

Eyre, a former sergeant with the Special Crimes Unit of the Victoria Police

Department, testified that he was involved in an investigation of HPL in the spring and

summer of 2009. Sergeant Eyre testified that he was contacted in May 2009 and

advised about the delivery of a package of marihuana. The package carrier, FedEx,

had received a tip that the package contained marihuana. The police set up

surveillance of the residence where the package was to be delivered and coordinated a

controlled delivery of the package. Shortly before the FedEx truck arrived, Sergeant

Eyre saw a blue Yukon pass by the house. The FedEx truck arrived, and the Yukon

pulled up in front of the residence. A man, woman (later identified as Raul and

Cynthia), and small child entered the house. Eyre saw the FedEx driver enter the

house with the package; after a minute or so, the driver left and drove away. Raul,

18 Cynthia, and the child immediately followed without the package. Sergeant Eyre alerted

other officers to follow the Yukon and continued his surveillance of the residence. A

couple of hours later, a blue pickup approached. Sergeant Eyre was positioned to view

the front of the residence and several other officers were positioned to view the back of

the residence. Sergeant Eyre saw the pickup drop off a man who went into the back

yard and returned with the earlier-delivered package. After picking the man up, the

truck left the area. Sergeant Eyre followed and requested other officers to execute a

traffic stop of the pickup. Following the stop, the package was found to contain

approximately twenty-six pounds of marihuana. Elvis Segura, Teresa Segura, and

Jimenez were arrested. Jimenez agreed to become a covert informant and engage in

controlled purchases of marihuana within HPL.

On June 9, 2009, Jimenez reported that a large quantity of marihuana had been

delivered to appellant’s house for repackaging. Following the same procedure

described earlier, Jimenez made a controlled purchase of marihuana from appellant at

appellant’s house. Jimenez wore a “wire” during the purchase, and the officers heard

the transaction. An officer was in Jimenez’s vehicle when Jimenez made the purchase

inside appellant’s house. Sometime after the purchase had been completed, Sergeant

Eyre received another call from Jimenez, notifying the officers that Raul had arrived at

appellant’s house and the marihuana was going to be moved. Sergeant Eyre set up

surveillance of appellant’s house and saw the Yukon parked in the driveway. When the

Yukon left the residence, Sergeant Eyre requested a traffic stop. Shortly thereafter, a

patrol officer made the stop and Raul and Jeremiah were arrested. The officers seized

approximately thirty-two pounds of marihuana from the Yukon.

19 On June 14, 2009, Jimenez made another controlled purchase of marihuana

from appellant at appellant’s house. On this occasion, an officer waited in Jimenez’s

vehicle while he went inside appellant’s house. Jimenez also wore a “wire” on this

occasion and the officers listened to the transaction. Sergeant Eyre identified the

substances purchased on June 9 and June 14, 2009 as marihuana. Sergeant Eyre

testified that appellant was a member of HPL.

On cross-examination, Sergeant Eyre stated that he inferred that appellant was a

member of HPL based on the facts that: (1) marihuana was delivered to appellant’s

house; (2) less than an hour later, Jimenez purchased marihuana at appellant’s house;

(3) later that day, the marihuana was loaded into and found in Raul’s Yukon; and (4)

several days later, Jimenez again purchased marihuana from appellant from the

remaining marihuana at appellant’s house.

g. Holly Jedlicka

Jedlicka testified that she is a Crime Scene Unit supervisor with the Victoria

Police Department. She testified that based on an analysis conducted by the

Department of Public Safety, the substances collected on May 23, June 9, and June 14,

2009 were marihuana.

h. Chris Garcia

Garcia worked with the Victoria Police Department for 27 years, was employed

by the Victoria County Sheriff’s Department at the time of trial, and was a member of the

Texas Violent Gang Task Force. Based on his experience, information from other gang

investigators, and knowledge that appellant’s brothers were members of HPL, Garcia

believed that in May and June of 2009, appellant was a “prospect” member of HPL.

20 2. Unlawful Possession of Marihuana

We begin by addressing appellant’s argument that the evidence is insufficient to

show that he unlawfully possessed the thirty-two pounds of marihuana found in Raul’s

vehicle on June 9, 2009. Appellant was not in the vehicle or at the scene when Raul

and Jeremiah were arrested and the marihuana was seized. Appellant contends that

Jimenez’s uncorroborated testimony is the only evidence that he was present when the

marihuana was loaded into Raul’s vehicle. According to appellant, there is no evidence

that he “was involved in the distribution of drugs with his brother or any other member of

the HPL, except for the uncorroborated testimony of Mr. Jimenez . . . .”

The State argues that the following evidence links appellant to the marihuana:

(1) Sergeant Eyre’s testimony that he observed Raul’s Yukon parked in appellant’s

driveway and followed the vehicle when it left appellant’s house shortly before it was

stopped; and (2) Jimenez’s testimony that he saw appellant (a) unloading a large

amount of marihuana from the Yukon into his house, (b) repackaging the marihuana

into smaller bundles, and (c) helping Raul and Jeremiah reload the repackaged

marihuana back into the Yukon. The State also argues that additional circumstances

linking appellant to the marihuana include: (1) Raul is the leader of HPL in the Victoria

area; (2) appellant is Raul’s brother, is an HPL associate; and sold marihuana for HPL;

and (3) DeLeon’s testimony that after Raul’s arrest, appellant drove the Yukon as he

collected marihuana proceeds for HPL.

Because appellant was indicted as a party, the State could establish the

“possession” element either by showing that appellant acted on his own or by showing

that he acted with the intent to promote or assist the offense by soliciting, encouraging,

21 directing, aiding, or attempting to aid Raul and Jeremiah in the commission of the

offense. See TEX. PENAL CODE ANN. §§ 7.01, 7.02. In conducting our legal sufficiency

review, we are not required to exclude informant testimony or accomplice testimony.

See Taylor v. State, 10 S.W.3d 673, 684 (Tex. Crim. App. 2000) (“Accomplice witness

testimony can be sufficient to support a conviction under the legal sufficiency standard

dictated by Jackson v. Virginia”) (citation omitted).

Jimenez’s testimony established that on June 9, 2009, he observed appellant

and Raul move a large quantity of marihuana into appellant’s home for repackaging.

Jimenez went to appellant’s house and saw appellant, Raul, and Jeremiah repackaging

the marihuana. Later that evening, Jimenez saw appellant, Raul, and Jeremiah

reloading the marihuana into Raul’s Yukon. An hour or so after the Yukon left

appellant’s house, appellant told Jimenez that Raul and Jeremiah had been arrested.

Jimenez’s testimony alone is sufficient to establish the “possession” element by

showing that appellant acted with the intent to aid Raul and Jeremiah in the commission

of the offense. Based on our review of the record, we hold that a rational jury could

have found beyond a reasonable doubt that appellant acted with the intent to aid Raul

and Jeremiah in possessing the marihuana.

3. Sufficiency of the Evidence that Substance was Marihuana

Appellant also argues that the evidence is insufficient to establish that the

substance confiscated in the traffic stop on June 9 was marihuana. Specifically,

appellant contends that because “the analysis performed on the confiscated evidence

was a microscopic analysis” and “no confirmatory test [was] performed, . . . it cannot be

conclusively determined that the substance was marihuana.”

22 We find appellant’s argument to be without merit. Sergeant Eyre testified that

State’s Exhibit 46 is the laboratory analysis regarding the substance seized in Raul’s

vehicle on June 9, 2009. Sergeant Eyre testified that he examined the substance

seized in the traffic stop and determined that it was marihuana. Ruben Rendon, a

chemist with the Department of Public Safety crime laboratory in Corpus Christi,

testified that Donald Thain, who subsequently retired, conducted the microscopic

analysis of the substance seized in the June 9 traffic stop; Officer Rendon reviewed

Officer Thain’s analysis. Both concluded that the substance was marihuana. Officer

Rendon testified that both a microscopic analysis and a Duquenois-Levine chemical test

were conducted on the substance. Officer Rendon explained the procedure involved in

the Duquenois-Levine test and testified that the procedure is accepted within the field.

We conclude that Officer Rendon’s uncontroverted testimony was sufficient to establish

that the substance confiscated in the June 9 traffic stop was marihuana.

Viewing the evidence in the light most favorable to the verdict, we conclude that

a rational trier of fact could have determined beyond a reasonable doubt that appellant

committed the underlying offense of possession of marihuana.

4. Intent to Participate as Member of a Criminal Street Gang

Appellant also challenges the sufficiency of the evidence to prove the second

element of engaging in organized criminal activity: that he had “the intent to establish,

maintain, or participate . . . as a member of a criminal street gang.” See TEX. PENAL

CODE ANN. § 71.02(a). Appellant argues that the evidence is insufficient because law

enforcement officers’ testimony that he was a member of HPL was “speculation” based

23 on “a theory of guilt by association.” Appellant asserts that the jury was asked to find he

was a member of HPL simply because of Raul’s leadership role in HPL.

The State responds that it was not required to establish appellant’s rank or

official membership in HPL; rather, it was required to establish that appellant intended to

participate as a member of HPL when he committed the offense. See Jackson v. State,

314 S.W.3d 118, 124–25 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (“[T]he State

had the burden to prove beyond a reasonable doubt that appellant committed the

underlying offense of aggravated robbery or robbery with the intent to establish,

maintain, or participate as a member of a criminal street gang.”). “The core component

of the second element is appellant’s intent to act as part of a criminal street gang.” Id.

at 127. The State contends there was ample evidence that appellant participated in

criminal activities involving HPL, including that he regularly sold HPL marihuana and did

so on the two controlled buys to Jimenez, and that the marihuana seized in the Yukon

on June 9 belonged to HPL.

As noted above, in conducting our sufficiency review, we do not exclude

informant testimony or accomplice testimony. See Taylor, 10 S.W.3d at 684. Segura

testified that: (1) it was discussed at HPL meetings that appellant was moving

marihuana for Raul; (2) HPL marihuana was regularly repackaged at appellant’s house;

(3) appellant stored guns for HPL at his house; and (4) Segura purchased HPL

marihuana from appellant on several occasions. Jimenez testified that: (1) the

marihuana he purchased from appellant on two “controlled buys” was HPL marihuana;

(2) appellant sold marihuana for HPL; (3) on June 9, he observed appellant and Raul

move a large amount of marihuana into appellant’s house; (4) he observed appellant,

24 Raul, and Jeremiah repackaging the marihuana; (5) he saw the repackaged marihuana

loaded back into Raul’s vehicle; (6) he saw Raul and Jeremiah leave appellant’s house

with the marihuana in Raul’s vehicle; and (7) appellant had more “say so” and access to

information than most full members of HPL because of Raul’s rank in HPL. Officer

Dowden testified that: (1) he monitored the “body wire” audio of the June 9 and June 14

controlled buys of marihuana from appellant and identified appellant’s voice during the

transactions; and (2) on June 9, he and other officers saw Raul’s Yukon at appellant’s

house and saw it leave the house shortly before the traffic stop. Sergeant Eyre testified

that: (1) on June 9, he observed Raul’s Yukon parked in appellant’s driveway; (2) when

the Yukon left, he requested a traffic stop of the vehicle; and (3) he inferred appellant

was a member of HPL based on the facts that marihuana was delivered to appellant’s

house on June 9, Jimenez made a controlled buy less than an hour later, and the same

day, the repackaged marihuana was loaded back into Raul’s vehicle from appellant’s

house. Garcia testified that based on information from other gang investigators,

appellant was a “prospect” member of HPL in May and June of 2009.

Viewing the evidence in a light most favorable to the jury’s verdict, we conclude

that the evidence is sufficient to show that appellant committed the underlying offense of

possession of marihuana with the intent to participate as a member of a criminal street

gang. See TEX. PENAL CODE ANN. § 71.02(a); see also Chaddock v. State, 203 S.W.3d

916, 921–922 (Tex. App.—Dallas 2006, no pet.) (holding evidence legally sufficient to

support participation as gang member where appellant associated with known gang

members, had identifying tattoos, and acted in conformity with gang’s behavior).

5. Insufficient Corroboration

25 We now turn to appellant’s argument that the testimony of Jimenez, Segura, and

DeLeon was not sufficiently corroborated under articles 38.14 and 38.141. See TEX.

CODE CRIM. PROC. ANN. art. 38.14, 38.141. Because we apply the same standards

governing the accomplice-witness rule to the covert-witness rule, see Malone, 253

S.W.3d at 258, we must ignore the testimony of Jimenez, Segura, and DeLeon, and

examine the record to see if any other evidence tended to connect appellant with the

offense committed. See id.; Cantelon, 85 S.W,3d at 461.

If we eliminate the testimony of Jimenez, Segura, and DeLeon, we are left with

the following inculpatory evidence. Officer Dowden testified that he monitored the “body

wire” audio of the June 9, 2009 controlled buy between Jimenez and appellant at

appellant’s house and identified appellant’s voice during the transaction. He and other

officers observed the Yukon parked in appellant’s driveway and when it left the house

shortly before the traffic stop. Officer Dowden also monitored the “body wire” audio of

the June 14, 2009 controlled buy between Jimenez and appellant at appellant’s house

and identified appellant’s voice during the transaction. Sergeant Eyre testified that he

and other officers listened to the controlled buys between appellant and Jimenez on

June 9 and June 14. After the controlled buy on June 9, the officers set up surveillance

at appellant’s house and saw the Yukon parked in appellant’s driveway. Sergeant Eyre

followed the Yukon when it left appellant’s house and requested a traffic stop. Officer

Garcia, an officer with 27 years of experience with the Victoria Police Department and a

member of the Texas Violent Gang Task Force, testified that based on his experience

and information from other gang investigators, he believed that appellant was a

“prospect” member of HPL in June 2009. The evidence establishes that appellant sold

26 marihuana to Jimenez at appellant’s house hours before the marihuana left appellant’s

house in the Yukon and was seized moments later in the traffic stop. It also establishes

that appellant continued to sell marihuana at his home after June 9.

Considering, as we must, the combined force of all of the non-accomplice and

non-covert witness evidence that tends to connect appellant to the offense, see Smith,

332 S.W.3d at 442, we conclude that the State has provided some non-accomplice and

non-covert witness evidence that tends to connect appellant to the commission of the

offense alleged in the indictment. Having found that the evidence was legally sufficient

and that the accomplice-witness and covert-witness testimony was sufficiently

corroborated, we overrule appellant’s first issue.

III. ADMISSION OF EVIDENCE

By his second issue, appellant contends that the trial court improperly admitted

certain evidence in violation of rule 403 of the Texas Rules of Evidence. See TEX. R.

EVID. 403 (providing that otherwise admissible evidence may be excluded when the

probative value of the evidence is substantially outweighed by the danger of unfair

prejudice). Specifically, appellant complains that the trial court improperly admitted: (1)

evidence that HPL would kill witnesses who testify against the gang or attempt to leave

the gang; (2) evidence that appellant stored guns for HPL; and (3) evidence that HPL

had treaties with other street gangs.

First, regarding his complaint about testimony that HPL would kill accomplice

witnesses who testify against the gang, appellant identifies testimony by Segura:

Q [Prosecutor]: Is it in the “HPLs” rules and obligations, is there something that talks about if members cooperate with law enforcement?

27 A [Segura]: Yes, sir.

Q: What do the rules say about cooperating with law enforcement?

A: They’ll be killed. It could be you, it could be your family members. Whoever they get to first.

Q: Do you have an agreement with “HPL,” where you will not be killed following your testimony?

A: No, sir.

Q: Do you think there will be a time when you won’t have to look over your shoulder?

[Defense counsel]: Objection— Speculation.

A: I—

[the Court]: Well—

[Prosecutor]: I’ll withdraw the question.

Similarly, appellant complains of the following testimony by Jimenez:

Q[Prosecutor]: Now, if a person fills out this form to leave the organization, why do you think they would ask for the names and addresses and contact information of your family, if you’re not going to be a member any more? (Indicating)

A[Jimenez]: Because once you leave the organization, sir, you’re a dead man. They know where to find you and where to find your family.

Q: Have you seen anybody fill one out?

A: No, sir, I have not.

Q: Based on your experience and time with the organization, would that organization do anything to keep people from testifying against them?

[Defense counsel]: Objection—Speculation.

28 [Prosecutor]: Based on his training and experience in the organization, your Honor.

[Court]: Overruled.

A [Jimenez]: Yes, sir.

The State argues that in both instances, appellant failed to preserve any alleged

error under rule 403. We review a trial court’s decision to admit or exclude evidence

under an abuse of discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex.

Crim. App. 2011). The trial court does not abuse its discretion unless its determination

lies outside the zone of reasonable disagreement. Id. If the trial court’s decision is

correct on any theory of law applicable to the case, we will uphold the decision. De La

Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009). “A timely and specific

objection is required to preserve error for appeal.” Luna v. State, 268 S.W.3d 594, 604

(Tex. Crim. App. 2008). “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.” Id.

Furthermore, improper admission of evidence is harmless if the same or similar

evidence is admitted without objection at another point in the trial. See Estrada v. State,

313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010) (noting that any preserved error with

respect to admission of complained-of evidence was harmless in light of “very similar”

evidence admitted without objection); Prieto v. State, 337 S.W.3d 918, 922 (Tex. App.—

Amarillo 2011, no pet) (citing Coble v. State, 330 S.W.3d 253, 282 (Tex. Crim. App.

2010)). “[A]ppellate arguments must correspond with the objection at trial.” See Butler

v. State, 872 S.W.2d 227, 236 (Tex. Crim. App. 1994).

29 The State argues appellant failed to preserve any error regarding both of the

complained of passages because counsel’s “speculation” objection did not preserve an

objection under rule 403. Even if appellant’s “speculation” objections had preserved his

rule 403 objections, we conclude that in both instances, appellant failed to preserve any

issue because his objections were untimely. In both instances, appellant did not object

until after an objectionable question had been asked and answered. See Luna, 268

S.W.3d at 604. With regard to Segura’s testimony, Segura had already testified that

cooperating HPL members would be “killed”; counsel objected to a question regarding

whether Segura would be “look[ing] over [his] shoulder.” Similarly, Jimenez had already

testified that when an HPL member leaves the gang, he is “a dead man”; counsel

objected to a question regarding what retaliatory action the gang would take to prevent

members from testifying against the gang. Appellant’s objections were therefore

untimely and any claim of error is forfeited. See id. Moreover, we note that similar

evidence was admitted without objection. See Estrada, 313 S.W.3d at 302 n.29. At

another point in Segura’s testimony, the prosecutor questioned him about his

agreement with the State to testify. Segura was asked, “So, at that point, you were

asked to give testimony against the people that were planning on killing you; is that

correct?” Segura replied, “Yes.” There was no objection to this testimony. See id.

Second, appellant also complains that three separate allegations that he

engaged in firearm distribution and storage for HPL “were substantially more prejudicial

than probative” and were not appropriately corroborated. Specifically, appellant

complains of testimony by Segura, DeLeon, and Jimenez that appellant stored guns for

HPL. Appellant identifies the following passage from Segura’s testimony:

30 Q[Prosecutor]: Did Jesus Zavala provide other things for the “HPL,” storage of things?

A[Segura]: Guns.

Q: Why would Jesus Zavala store guns at his sister’s house?

[Defense counsel]: Your Honor, I would object, under Rule 403, relevance.

Following a bench conference, the trial court overruled appellant’s objection.

Appellant also identifies testimony by DeLeon. The prosecutor asked DeLeon,

“Did Jesus Zavala ever store anything, other than marijuana, for Raul Gonzale[s] and

the HPL?” DeLeon responded, “At one point, he stored weapons.” There was no

objection to this testimony.

Appellant also complains of Jimenez’s testimony regarding what he observed

being loaded into Raul’s vehicle on June 9:

Q[Prosecutor]: During the process of loading the vehicle, was anything but marijuana loaded or attempted to be loaded?

A[Jimenez]: I believe there was some—

[Defense counsel]: Objection to relevance, your Honor.

[Prosecutor]: Your Honor, I believe what was being loaded or attempted to be loaded into the vehicle is relative [sic].

Q[Prosecutor]: Was there anything besides the marijuana that was being loaded or attempted to be loaded into the vehicle?

A: Yeah. They were going to load some firearms, but they decided not to take those with the marijuana, sir.

31 Even if we assume, without deciding, that appellant preserved error with his

objections to Segura’s and Jimenez’s testimony, the error, if any, was harmless

because he did not object to DeLeon’s testimony that appellant stored guns for HPL.

See Estrada, 313 S.W.3d at 302 n.29. We overrule appellant’s rule 403 complaint

regarding the testimony that appellant stored guns for HPL.

Third, appellant complains that DeLeon’s testimony that HPL entered treaties

with two other gangs in the area “was substantially more prejudicial than probative.”

Appellant acknowledges that the trial court did not admit State’s Exhibit 35—a treaty

between the “Raza Unida” prison gang and HPL—into evidence. However, appellant

complains that “[t]he jury already heard the damaging statements about the treaties and

why they come into existence.” According to appellant, “Evidence that gangs are

entering treaties in the community and fighting over distribution rights was likely used by

the jury in an impermissible manner.”

The State argues that appellant failed to preserve any error because his

objection to State’s Exhibit 35 was based on relevance, not rule 403. We have

examined the record and have been unable to identify any objection to State’s Exhibit

35. During DeLeon’s testimony, the State offered Exhibits 36 and 37. Appellant

objected on relevance grounds. At a bench conference, appellant’s counsel asked for a

running objection to State’s Exhibit 42. The trial court admitted several other exhibits

offered by the State. The State then offered State’s Exhibit 35 and the trial court stated

it “will take that under advisement at this time” and “review the exhibit.” The prosecutor

questioned DeLeon about treaties between HPL and other gangs, eliciting testimony

that gang wars typically involved fighting over distribution rights and sources of

32 narcotics. The trial court then “sustained the running objection on State’s Exhibit 35.”

The prosecutor then questioned DeLeon, without objection, regarding treaties between

HPL and the “Texas Syndicate” and between HPL and the “Mexican Mafia.”

The State argues that even if we construe appellant’s running objection as

applicable to State’s Exhibit 35, appellant’s relevance objection did not preserve an

objection under rule 403. The State also argues that any error in the admission of

DeLeon’s testimony regarding the treaty between HPL and “Raza Unida” was rendered

harmless by his unobjected-to testimony regarding treaties between HPL and the

“Texas Syndicate” and the “Mexican Mafia.”

We agree. Appellant has not directed us to any place in the record and we have

not found any objection to DeLeon’s testimony about treaties between HPL and other

gangs on the basis of rule 403. Thus, no issue was preserved regarding DeLeon’s

testimony. See Sony v. State, 307 S.W.3d 348, 356 (Tex. App.—San Antonio 2009, no

pet.) (holding that a relevancy objection failed to preserve an objection under rule 403);

Lopez v. State, 200 S.W.3d 246, 251 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd);

(noting that a rule 403 objection is not implicitly contained in a relevancy objection and

that a specific rule 403 objection must be raised to preserve error). We conclude

appellant failed to preserve any issue regarding DeLeon’s testimony about treaties

between HPL and other gangs. We overrule appellant’s second issue.

IV. JUROR MISCONDUCT

By his third issue, appellant contends that reversible error occurred during trial

when it was established that one of the jurors had an unauthorized conversation with

Officer Smejkal. The trial judge had observed a juror conversing with Officer Smejkal in

33 the hallway and questioned Officer Smejkal at a bench conference. Officer Smejkal

stated he had a brief conversation with an acquaintance that he knew from his affiliation

with the Victoria County Livestock Show. Officer Smejkal stated that he had inquired

about the progress of an animal owned by the juror. He had not mentioned or

discussed the case. The only question asked by defense counsel was whether the juror

was wearing a juror tag. Officer Smejkal responded that she was not and he did not

know she was a juror. Defense counsel moved for a mistrial “based upon him talking

with the juror and based upon the fact that she could have some bias towards Gary

Smejkal that could affect her in this case.” The trial judge did not rule on the request

and the trial continued.10

Appellant has the burden of proving the allegation of juror misconduct. Contreras

v. State, 54 S.W.3d 898, 907 (Tex. App.—Corpus Christi 2001, no pet.) (citing Hughes

v. State, 24 S.W.3d 833, 842 (Tex. Crim. App. 2000)). When a juror engages in an

unauthorized conversation, injury is presumed. Id. This presumption is rebuttable by a

showing that the case was not discussed or that nothing prejudicial to the accused was

said. Id.

Here, Officer Smejkal testified that he and the juror did not discuss the case in

any way. Appellant presented no evidence to the contrary and did not establish any

basis for the juror’s alleged possible “bias.” Accordingly, the presumption of harm

arising from the juror and Officer Smejkal’s unauthorized conversation was rebutted by

a showing that the case was not discussed. See id. We overrule appellant’s third

issue.

V. IMPROPER JURY ARGUMENT 10 The State asserts that appellant preserved the issue by raising it in a motion for new trial.

34 By his fourth issue, appellant contends that the prosecutor engaged in improper

jury argument when, referring to the State’s covert and accomplice witnesses’

testimony, he stated, “And beyond that deal [between the witness and the State], what

do you have? Virtually, their death sentence, if they’re caught.” Appellant argues that

this statement inappropriately bolstered the testimony of the State’s witnesses.

The State argues that appellant failed to preserve any issue because he did not

object to the prosecutor’s statements at trial. We agree. The record reflects that

defense counsel did not object to the referenced statement or any other statement

made by the prosecutor during his closing argument. A defendant’s failure to object to a

jury argument forfeits his right to complain about the argument on appeal. Cockrell v.

State, 993 S.W.2d 73, 89 (Tex. Crim. App. 1996); Benn v. State, 110 S.W.3d 645, 650

(Tex. App.—Corpus Christi 2003, no pet.). We hold that appellant failed to preserve

any issue regarding improper jury argument. See Cockrell, 993 S.W.2d at 80. We

overrule appellant’s fourth issue.

VI. CONCLUSION

We affirm the trial court’s judgments .

DORI CONTRERAS GARZA Justice

Do not publish. TEX. R. APP. P. 47.2(b) Delivered and filed the 23rd day of February, 2012.