Opinion
No. 05-10-00860-CR
02-13-2012
FRANCISCO GONZALEZ LUCIO AKA FRANCISCO GONZALEZ, Appellant v. THE STATE OF TEXAS, Appellee
Affirmed, Opinion Issued February 13, 2012
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F09-56543-Q
MEMORANDUM OPINION
Before Justices Morris, Moseley, and Francis
Opinion By Justice Francis
Francisco Gonzalez Lucio appeals his conviction for aggravated robbery with a deadly weapon. After appellant pleaded guilty, the jury assessed punishment at twenty years in prison and a $10,000 fine. In three issues, appellant claims the trial court abused its discretion by admitting certain evidence and erred by charging the jury without limiting its consideration of gang affiliation testimony. We affirm.
On July 4, 2009, appellant and two friends, Jose and Guillermo, were “hanging out” when they decided to steal the “rims” from a random passing car. After appellant got a gun and bullets, Jose drove his white Yukon to an area with numerous clubs and waited. When they saw a black Chrysler with rims and only one person inside, the men decided to stop that car. They followed the Chrysler to an intersection and pulled in front of it. Appellant got out, pointed the gun at the Chrysler, and ordered the driver, Brenda Martinez, out of the car. Martinez panicked, put the car in reverse, and began to accelerate. Appellant fired three shots; one hit Martinez in the arm. Martinez drove for about fifteen minutes with appellant and his friends following her. During that time, she called 911 to report what had happened. Jose and the others followed Martinez until they ran a yellow light and a police car began following them. Although they attempted to flee, the steering wheel on Jose's Yukon locked up, and he hit a tree.
Appellant was arraigned and entered a plea of guilty to aggravated robbery with a deadly weapon. Jury selection focused only on the duties of the jury in assessing punishment. Appellant pled guilty to the jury in open court after jury selection and the trial court stated, “even though the defendant has pled guilty, there still has to be sufficient evidence before you to support a guilty finding.” After co-defendant Mendoza, three police officers and complainant Martinez testified, the trial court stated the evidence was sufficient to support a finding of guilt and sent the jury back to find him guilty. Three additional witnesses and appellant then testified. The jury assessed punishment at twenty years in prison and a $10,000 fine.
In his first and third issues, appellant claims the trial court abused its discretion by allowing evidence of appellant's membership in a gang. The first issue deals with the admission of a gang affiliation testimony given by a member of the gang unit of the Dallas police department and the third issue deals with the admission of a photo of appellant's tattoo taken at the scene of the arrest.
Absent an abuse of discretion, we will not disturb a trial court's decision to admit evidence. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). A trial court abuses its discretion when it acts outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1991) (op. on reh'g). Article 37.07, section 3(a) of the Texas Code of Criminal Procedure governs the admissibility of evidence during the punishment phase of a noncapital trial and provides evidence may be offered by the State and defendant “as to any matter the court deems relevant” including evidence of reputation, character or the circumstances of the offense. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2012).
Evidence of gang membership would fall under the type of “bad acts” relevant to sentencing, and article 37.07 allows the introduction of such evidence. Sierra v. State, 266 S.W.3d 72, 79 (Tex. App.-Houston [1st Dist.] 2008, pet. ref'd) (discussing Beasley v. State, 902 S.W.2d 452, 456 (Tex. Crim. App, 1995)); see Ho v. State, 171 S.W.3d 295, 305 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd)(“Even if appellant was no longer affiliated with the gang at the time of the shooting, evidence that he was a gang member is relevant-and thus admissible at punishment-because it relates to character.”).
In his third issue, appellant contends the trial court abused its discretion in admitting appellant's photograph showing his gang tattoo because it was unrelated to identification or culpability, improperly directed the jury to focus on his ethnicity, violated his First Amendment right of freedom of association, and was unduly prejudicial. We note that at trial, appellant objected only that the photograph was “highly prejudicial . . . too prejudicial.” Because he did not raise the other objections (unrelated to identification or culpability, improperly directed the jury to focus on his ethnicity, or violated his First Amendment right of freedom of association) in the trial court, we conclude he has failed to preserve these complaints. See Tex. R. App. P. 33.1(a). We will address only whether the photograph was prejudicial.
Officer Michael Hackbarth was a crime scene detective called to investigate the shooting of Martinez. He took several photographs of Martinez's car as well as photographs of the occupants of the Yukon. One photograph was of appellant in a muscle shirt with a large tattoo partially displayed on his upper right arm. No reference to gang activity or membership was made at the time of admission of the photo or during Hackbarth's testimony at all. The photograph was used to identify appellant as a member of the group who had attacked Martinez. See Tex. R. Evid. 404(b). Furthermore, when the State later asked Martinez if she could identify the man who shot her, she identified appellant in open court and also in this same photograph taken by Hackbarth shortly after Martinez had been shot. Because appellant did not object to this second showing of the photograph or to Martinez's identification of him in the photograph, any error is waived. Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App. 1999).
Finally, this proceeding was a punishment hearing. Appellant entered a plea of guilty to the indictment and although five witnesses testified before the trial court instructed the jury to find him guilty, the only issue was punishment. See Stahle v. State, 970 S.W.2d 682, 688 (Tex. App.-Dallas 1998, pet, ref'd) (plea of guilty before the jury admits the existence of all elements necessary to establish guilt and introduction of evidence by the State is only to enable jury to intelligently determine punishment) (citing Williams v. State, 674 S.W.2d 315, 318 (Tex. Crim. App. 1984) (noting no evidence need be entered when defendant pleads guilty before jury; evidence necessary only when defendant pleads guilty before court)).
Appellant admitted to conspiring with Jose and Guillermo to rob Martinez of her tire rims. He took responsibility for getting the gun and jumping out of the Yukon. He said he ordered Martinez out of her car and fired three shots, hitting Martinez once in the arm. Appellant told the jury that while he was in the Texas Youth Commission, he was a member of the How High Krew gang and had the gang's tattoo on his arm. He admitted having four prior convictions-including two for stealing cars and one for burglarizing a habitation. No error resulted from the admission of the photograph of appellant. We overrule appellant's third issue. In his first issue, appellant argues the admission of his gang affiliation was irrelevant, remote, and more prejudicial than probative.
Dallas Police Officer Antonio Aleman works in the gang unit. At trial, he told the jury appellant was a member of the How High Krew gang. The police determine gang membership based on various factors, including self-admission and tattoos. In June 2008, appellant was being interviewed on an unrelated incident when he admitted to Aleman he was a member of the How High Krew. Appellant's tattoo, the letters “HHK” and “L7S” also indicated membership in the gang. Aleman explained the “L” stands for leaf and “S” for soldiers. In Aleman's opinion, appellant was still a member of the gang.
After Aleman's testimony and on direct examination, appellant admitted gang membership, said he joined the gang when he was in TYC but was not currently associated with it.
The jury was (1) provided evidence of appellant's gang membership, (2) given evidence of the gang's character and reputation, (3) not asked to determine if appellant committed bad acts or misconduct, and (4) admonished on using the evidence to consider only the reputation and character of appellant. See Beasley, 902 S.W.2d at 457. The trial court, as gatekeeper, could properly determine this evidence was more probative than prejudicial, relevant, and not remote. See Mitchell v. State, 931 S.W.2d 950, 954 (Tex. Crim. App. 1996). We overrule appellant's first issue.
In his second issue, appellant claims the trial court erred by failing to instruct the jury to limit its consideration of appellant's gang membership as evidence solely of character.
We review allegations of jury charge error by determining whether any error exists in the charge and, if so, whether sufficient harm resulted from the error to require reversal. Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Crim. App. 1994). When error is argued for the first time on appeal, we reverse only if appellant suffered “egregious harm.” Arline v. State , 721 S.W.2d 348, 351 (Tex. Crim. App. 1986). We consider “the actual degree of harm . . . in light of the entire jury charge, the state of the evidence, including contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” Id. (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g)). Here, appellant complains the trial court did not properly limit the jury's consideration of appellant's gang membership as evidence of character. Our review of the record, however, reveals the trial court did give the jury an oral instruction regarding the gang evidence. Officer Aleman first testified outside the jury's presence, appellant objected the evidence was remote and the officer had no personal knowledge appellant was in a gang. The trial court overruled these objections. Appellant did not request a limiting instruction be given. Nevertheless, when the jury was present and before Officer Aleman testified in open court, the trial court orally instructed the jury:
Members of the jury, I'm going to give you a legal instruction before we get started. During the punishment phase of the trial, the State or the Defense may present to you evidence relevant to sentencing, including but not limited to the prior criminal record of the Defendant; his reputation; his character, an opinion regarding his character; the circumstances of the offense for which he's being tried; any other evidence of extraneous crimes or bad acts that can be proven to you beyond a reasonable doubt.
And so there may be some evidence that may be presented to you regarding the Defendant's membership, if there is any membership, in a - in a gang. That evidence is not brought - that evidence is part of reputation testimony only, and you cannot take it into consideration unless you're convinced beyond a reasonable doubt of the evidence. And that is presented to you. The law states only - if it assists you in determining the good or the bad reputation of the Defendant, if it - if it does so.
Because the trial court instructed the jury to limit its consideration of appellant's gang membership to matters relevant to the assessment of punishment, and required that the evidence be proven beyond a reasonable doubt, we conclude his complaint lacks merit. See Huizar v. State, 12 S.W.3d 479, 480 (Tex. Crim. App. 2000)(in the penalty phase of a trial, if extraneous offense evidence is offered by the State, the trial court must sua sponte provide a reasonable doubt instruction).
To the extent appellant argues the trial court's written jury instructions “failed to guide and limit the jury's consideration of gang affiliation,” we note appellant did not request a written limiting instruction and did not object. And, after considering the trial court's oral admonishment and the entire record, we cannot conclude appellant was egregiously harmed. See Almanza, 686 S.W.2d at 171. We overrule appellant's second issue.
We affirm the trial court's judgment.
MOLLY FRANCIS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
100860F.U05