Opinion
Nos. 05-09-01332-CR, 05-09-01333-CR, 05-09-01334-CR, 05-09-01335-CR, 05-09-01336-CR
Opinion issued January 28, 2011. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 283rd District Court, Dallas County, Texas, Trial Court Cause Nos. F06-71791-T; F07-47254-T; F07-47260-T; F08-51390-T; F08-51391-T.
Before Justices MOSELEY, BRIDGES, and O'NEILL.
OPINION
Shannon Don Gilmore appeals his convictions for unlawful possession with intent to deliver cocaine, ecstasy, and marijuana. Appellant entered guilty pleas to the charges against him but pled untrue to the enhancement paragraphs alleging prior convictions. A jury found the enhancement paragraphs true and assessed punishment at forty years' confinement in cause numbers F06-71791-T and 07-47254-T, thirty-five years' confinement in cause number F07-47260-T, and forty-five years' confinement in cause numbers F08-51390-T and F08-51391-T. In a single issue, appellant argues the trial court erred in admitting evidence of appellant's gang affiliation. We affirm the trial court's judgments. In October 2006, appellant was arrested at a house in Dallas when police executed a cocaine search warrant. In the house, police found ninety-seven baggies of marijuana, a "brick" of marijuana, eight baggies of cocaine, ecstasy, and drug paraphernalia. In a shed on the property, police recovered $25,546 in cash. In January 2007, police again executed a cocaine search warrant at the house. Police also had a warrant for appellant's arrest. Appellant was arrested, and police found marijuana and cocaine inside the house. In February 2008, police executed a cocaine search warrant at a different house in Dallas. Appellant fled through a closed glass window when police officers entered, but he was subsequently detained and arrested. Police recovered cocaine and crack cocaine from the house, along with drug paraphernalia, cash, firearms, and ammunition. At punishment, the State introduced the testimony of officer B.K. Nelson, an expert on Dallas gangs and a gang unit officer for the past sixteen years. Appellant objected on the grounds that Nelson's testimony was not relevant and it would be more prejudicial than probative. The trial court overruled appellant's objection. Nelson testified that a gang known as 44 Oakland Gangstas was one of the most prominent street gangs in South Dallas. Nelson testified gang members were identified by their tattoos, their dress, and their association with other gang members. Nelson testified he did not know appellant, had not seen appellant on the streets, and had no documentation tying him to the gang. The jury subsequently found the enhancement convictions true and assessed punishment in each case. These appeals followed. In a single issue, appellant argues the trial court erred in admitting evidence of his gang affiliation. Specifically, appellant complains this evidence was irrelevant because it did not establish appellant was a member of the gang or the activities and purposes of the gang to which he allegedly belonged; the jury was not instructed to consider the evidence in the context of appellant's character or reputation; and, even if relevant, the evidence should have been excluded because it was unfairly prejudicial. The admissibility of character and reputation evidence at the punishment stage is within the sound discretion of the trial court. Stewart v. State, 995 S.W.2d 251, 256 (Tex. App.-Houston [14th Dist.] 1999, no pet.). A trial court's ruling on a rule 403 objection is also reviewed for abuse of discretion. See Reese v. State, 33 S.W.3d 238, 247 (Tex. Crim. App. 2000). Testimony regarding a defendant's affiliation with a gang may be relevant and admissible at the punishment stage of a trial to show the character of the accused. Beasley v. State, 902 S.W.2d 452, 456 (Tex. Crim. App. 1995). It is not necessary to link the accused to the bad acts or misconduct generally engaged in by gang members, so long as the jury is (1) provided with evidence of the defendant's gang membership, (2) provided with evidence of character and reputation of the gang, (3) not required to determine if the defendant committed the bad acts or misconduct, and (4) only asked to consider reputation or character of the accused. Id. at 457. Here, appellant admitted he was a member of the 44 Oakland Gangstas approximately nineteen years before trial when he was "15, 16," but he denied associating with the gang since that time. Nevertheless, appellant had "Oakland" tattooed across his chest. Appellant testified that, when he was a gang member, he was "running dope for Will," he protected a drug house, and he was shot in the face. Regarding the charged offenses, appellant claimed he was not a "total part of it" but did "play[] a part in all that." Appellant referred to "partner friend[s] . . . all helping each other out" in the drug business. Both of the drug houses where appellant was arrested were within the territory of the 44 Oakland Gangstas, and appellant admitted seeing and briefly greeting gang members every day in the neighborhood. The evidence included a letter from appellant's brother referring to "over half the 44" hating appellant and his brother. From this evidence, the jury could have concluded appellant remained a member of the 44 Oakland Gangstas, despite his protestations that he stopped being a member nineteen years before trial. See Garcia v. State, 239 S.W.3d 862, 867 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd) (gang tattoos alone sufficient evidence of gang membership, despite Garcia's denial of membership). In reaching this conclusion, we reject appellant's argument that the gang evidence was inadmissible because it did not pertain to appellant's admitted period of gang membership nineteen years before. Regarding the evidence presented concerning the character and reputation of the 44 Oakland Gangstas, appellant raises a similar argument that there was no evidence presented pertaining to the gang's activities nineteen years before. Because the evidence supported the conclusion that appellant was still a gang member at the time of the charged offenses, we again reject this argument. Thus, Nelson's testimony that a "criminal street gang," the 44 Oakland Gangstas, were engaged in aggravated assaults, narcotics selling, and murder satisfied the second prong of Beasley. As to the fourth prong of Beasley, appellant argues the gang evidence was inadmissible because the jury was not instructed to consider the gang evidence in the context of appellant's character or reputation. However, appellant failed to raise this argument in the trial court and has thereby not preserved the issue for our review. See Tex. R. App. P. 33.1. Finally, appellant argues the probative value of the gang evidence was substantially outweighed by the danger of unfair prejudice. Under Texas Rule of Evidence 403, evidence, although relevant, "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403; see also Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990) (rule 403 carries presumption probative value of relevant evidence is not substantially outweighed by other factors). A trial court, when undertaking a rule 403 analysis, must balance (1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). These factors may well blend together in practice. Id. at 642. Here, the gang evidence presented was relevant under Beasley and was probative of appellant's character. Nelson's entire testimony is contained in twelve pages of a record containing approximately 390 pages of testimony and did not consume an inordinate amount of time at the punishment hearing. Finally, the jury sentenced appellant to thirty-five, forty, and forty-five years' confinement in the multiple cases against him when the punishment range permitted a sentence of ninety-nine years in each case. Under these circumstances, we conclude the probative value of the gang evidence was not substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403; Gigliobianco, 210 S.W.3d at 641-42. Accordingly, the trial court did not abuse its discretion in admitting the gang evidence. See Stewart, 995 S.W.2d at 256; Reese, 33 S.W.3d at 247. We overrule appellant's issue. We affirm the trial court's judgments.