Kevin Ray Davis v. State

• Court: Court of Appeals of Texas
• Decided: July 21, 2010
• Docket: 10-09-00362-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-09-00362-CR

KEVIN RAY DAVIS, Appellant v.

THE STATE OF TEXAS, Appellee

From the 54th District Court McLennan County, Texas Trial Court No. 2008-2105-C2

MEMORANDUM OPINION

Kevin Ray Davis appeals his conviction for aggravated assault with a deadly

weapon. TEX. PEN. CODE ANN. § 22.02 (Vernon 2003). Based on the jury’s verdict on

punishment, the trial court sentenced Davis to imprisonment for twenty-five years in

the Texas Department of Criminal Justice – Institutional Division. Davis complains that

the trial court abused its discretion by refusing to allow testimony of an opinion

regarding the victim’s character for truthfulness in the guilt-innocence phase and in the

admission of testimony regarding his gang affiliation in the punishment phase of the

trial. Because we find no reversible error, we affirm the judgment of the trial court. Opinion Regarding Truthfulness

Davis complains that the trial court erred by sustaining an objection by the State

to a question propounded to a probation officer regarding the victim’s character for

truthfulness based solely on the information contained in the victim’s probation file.

Davis sought to elicit the testimony of a supervisor in the probation department that

supervised the victim’s probation for the offense of tampering with a governmental

record pursuant to Texas Rule of Evidence 608.

In a hearing outside of the presence of the jury, Davis made a proffer of the

proposed testimony of the probation officer. Specifically, he asked the following:

Q: Ma’am, I think we were about to the part where I think I asked you if you had a chance to look at the file.

A: Yes.

Q: Okay. And that’s a file that’s kept in the normal course of the operation of the probation department; is that correct?

A: That’s correct.

Q: Okay. Records made by people who have personal knowledge of the entries, is that right?

Q: Okay. And you’ve had a chance to look at that. And based on what you’ve seen in those records, do you have an opinion on whether Ms. Rollins is a truthful person or not?

A: Yes, I do.

Q: And what would that be?

A: That she is not a truthful person.

Davis v. State Page 2 It is apparent that at the trial court, Davis was seeking to elicit testimony

regarding the probation officer’s opinion regarding the victim’s character for

truthfulness, not the victim’s reputation for truthfulness. However, his complaint to this

Court relates solely to reputation evidence. Testimony regarding a witness’s opinion of

the victim’s character for truthfulness is not the same as a witness’s knowledge of the

victim’s reputation for truthfulness. See, generally, Scott v. State, 222 S.W.3d 820, 823-826

(Tex. App.—Houston [14th Dist.] 2007, no pet.). The first is the direct opinion of the

witness, which could be based solely on personal knowledge. The second is based on

significantly more information. Reputation evidence must be based on conversations

with others or hearing others discuss the reputation of the individual in question, not

just personal knowledge. See Adanandus v. State, 866 S.W.2d 210, 226 (Tex. Crim. App.

1993). Davis’s complaint does not comport with his objection at trial. To preserve error

for appellate review, the point of error on appeal must comport with the objection made

at trial. See TEX. R. APP. P. 33.1; see also Sorto v. State, 173 S.W.3d 469, 476 (Tex. Crim.

App. 2005). We overrule issue one.

Evidence of Gang Membership

Davis complains that the trial court erred by allowing the introduction of

evidence of his purported membership in the “Crips,” including the introduction of a

photograph of Davis making a gang sign in the punishment phase of his trial. Davis

contends that the admission of the gang-related evidence was more prejudicial than

probative. However, during the testimony given relating to Davis’s purported gang

membership and the activities of the Crips in general, Davis only objected one time on

Davis v. State Page 3 the basis of relevance. Therefore, we limit our consideration of this issue to the only

time Davis objected on the basis that the evidence was more prejudicial than probative,

which was at the time of the admission of the photograph. See TEX. R. APP. P. 33.1.

We review challenges to the admission of evidence for an abuse of discretion by

the trial court. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on

reh'g) (“as long as the trial court's decision was within the zone of reasonable

disagreement and was correct under any theory of law applicable to the case, it must be

upheld”). Evidence of membership in a gang during the punishment phase of a trial is

generally admissible as evidence of the defendant’s character, as is evidence relating to

the activities of the gang. Beasley v. State, 902 S.W.2d 452, 456-57 (Tex. Crim. App. 1995).

Davis does not cite to any authorities in support of his contention that the photograph

should have been excluded. We do not believe that the admission of the photograph of

Davis was outside of the zone of reasonable disagreement. We overrule issue two.

Conclusion

We find that the argument made in this appeal regarding the admission of the

opinion of the probation officer does not comport with his objection at trial. We find

that the trial court did not abuse its discretion in the admission of a photograph of

Davis making a gang sign. We affirm the judgment of the trial court.

TOM GRAY Chief Justice

Davis v. State Page 4 Before Chief Justice Gray, Justice Reyna, and Justice Davis Affirmed Opinion delivered and filed July 21, 2010 Do not publish [CRPM]

Davis v. State Page 5