Opinion
Nos. 05-10-00167-CR, 05-10-00168-CR
Opinion Filed June 20, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 203rd Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F06-89531-P and F06-89569-P.
Before Justices MOSELEY, RICHTER, and LANG-MIERS.
MEMORANDUM OPINION
Steven Lewis Kelly, Jr. appeals convictions for robbery and aggravated robbery with a deadly weapon. He pleaded guilty before a jury in both cases and the jury assessed punishment at five years incarceration in the robbery case and ten years incarceration in the aggravated robbery case. Appellant filed a brief in each case raising identical issues: (1) the trial court erred by overruling his objections to evidence of appellant's gang membership; (2) the trial court erred by informing the jury about good conduct time credit; and (3) the trial court lacked jurisdiction to hear the cases. For the following reasons, we affirm the trial court's judgments. Because the issues of law are well-settled, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. Appellant judicially confessed to both offenses and asked the jury to recommend community supervision in both cases. The complainant in the aggravated robbery case did not testify. In the robbery case, the complainant testified that he went to a convenience store to withdraw $100 from the ATM machine to pay his car insurance. He saw a group of nine or more "youngsters" hanging around the corner of the store. He went into the store, withdrew the money, and went back to his car to leave. Before the complainant could close the car door, appellant appeared by the door and began to attack the complainant. Appellant punched the complainant and dragged him out of the car. While appellant kicked the complainant, an accomplice cut the complainant's wallet out of his pants pocket. Appellant was later arrested and identified by the complainant as the person who attacked him. The police also determined that appellant had robbed another victim around the same time and had used or exhibited a deadly weapon in that robbery. Both offenses occurred in September 2006, almost four years before the trial. In his first issue, appellant argues that the trial court erred by allowing the State to offer testimony at sentencing about his gang membership. He argues that the evidence was not relevant and, even if relevant, was inadmissible under rule 403. We review a trial court's admission or exclusion of evidence under an abuse of discretion standard and will not disturb the trial court's decision as long as the court operated within its discretion. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007); Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1990) (op. on reh'g). Article 37.07, section 3(a)(1) of the code of criminal procedure governs the admissibility of evidence in the punishment phase of trial. It states that evidence may be offered in the punishment phase
as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant. . . .Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2010). A trial court determines whether evidence is relevant to sentencing by asking whether the evidence would be helpful to the jury in determining the appropriate sentence for the defendant in that case. Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999). This determination is more a function of policy rather than logical relevance. Sunbury v. State, 88 S.W.3d 229, 233 (Tex. Crim. App. 2002) (citing Rogers, 991 S.W.2d at 265). One policy reason for admitting evidence in the punishment phase is to give complete information to the jury so that it can tailor an appropriate sentence for a defendant. Id. at 233-34; see Tex. Penal Code Ann. § 1.02(3) (West 2003) (stating one objective of code is "to prescribe penalties that are proportionate to the seriousness of offenses"). The State presented the testimony of Officer Marcus Markulec, a detective in the Dallas Police Department's Gang Unit, who testified that he arrested appellant for the instant offenses in December 2006. Officer Markulec testified that appellant admitted during questioning that he was a member of the Highland Hills Posse. The officer explained that the Highland Hills Posse is a gang associated with the Crips, a criminal street gang, and that the gang is "involved in illegal sale of narcotics, aggravated robbery, robbery, aggravated assault, evading arrest, stolen vehicles." He testified that the instant offenses were gang related. The Texas Court of Criminal Appeals has held that evidence of gang membership is relevant to a defendant's character and is admissible in the punishment phase of trial. Beasley v. State, 902 S.W.2d 452, 456 (Tex. Crim. App. 1995); Anderson v. State, 901 S.W.2d 946, 950 (Tex. Crim. App. 1995). Appellant argues, however, that the evidence was not relevant because the officer testified that the Gang Unit had no contact with appellant since his arrest in December 2006, almost four years earlier. He argued that the lack of contact with the Gang Unit for four years showed that appellant was no longer a gang member and had denounced that lifestyle. But even if that is true, a defendant's gang membership at the time of the offense is relevant in the punishment phase to show a defendant's character. See Beasley, 902 S.W.2d at 456; Anderson, 901 S.W.2d at 950; Ho v. State, 171 S.W.3d 295, 305 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd) (admitting evidence of gang membership at punishment even though evidence showed that defendant may not have been member of gang at time of offense because any prior gang membership is relevant to character). Based on these circumstances, the trial court did not abuse its discretion by admitting evidence of appellant's gang membership at the time of the offenses because the evidence was relevant in the punishment phase to show his character at the time of the offenses. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1); Beasley, 902 S.W.2d at 456; Anderson, 901 S.W.2d at 950. Appellant also argues that even if the evidence of his gang membership was relevant, it was inadmissible under rule 403. He argues that the probative value of the evidence was almost nil while the prejudicial effect undermined his defense that he "deserved serious consideration for probation because his conduct" from the date of the offenses in 2006 through trial in 2010 "demonstrated that he had renounced [the gang] lifestyle. . . ." Evidence rule 403 states that even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Tex. R. Evid. 403. The trial court conducts a balancing test in determining whether to admit or exclude the evidence. See Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006) (stating factors to consider in conducting balancing test). Relevant evidence is presumed admissible and more probative than prejudicial. Montgomery, 810 S.W.2d at 389. Appellant argues that "[i]t is axiomatic that evidence of criminal street gang membership is highly prejudicial." And he contends that the probative value of his membership in a gang was almost nil. He argues that when the probative value of evidence is de minimis it is error to admit it under rule 403. Appellant admitted he was a member of the Highland Hills Posse. The evidence showed that this gang was a criminal street gang involved in numerous illegal activities. Evidence of appellant's gang membership was highly probative of appellant's character at the time of the offenses, which the officer testified were gang-related. We disagree that its probative value was de minimis. Admission of this evidence served one of the policy reasons for admitting punishment evidence-to give the jury complete information about the offenses. Although this evidence was prejudicial, as almost all punishment evidence is, the trial court could have reasonably concluded that the evidence was not unfairly prejudicial. See Gigliobianco, 210 S.W.3d at 642. We do not see from the record, and appellant does not explain, how the evidence of his gang membership unfairly prejudiced the jury against recommending community supervision in these cases. Appellant presented testimony through cross-examination of Officer Markulec that the Gang Unit had no contact with appellant for the past four years. But the State also offered evidence that appellant had been arrested one month prior to trial for public intoxication and evading arrest, which could have influenced the jury's decision not to recommend community supervision. We conclude that the trial court did not act outside its discretion by concluding that the evidence of appellant's gang membership was not unfairly prejudicial. We resolve issue one against appellant. In issue two, appellant argues that the trial court erred by instructing the jury about his eligibility for good conduct time credit. Appellant argues that it was error to submit an instruction about good conduct time because he "was convicted of murder . . . and is precluded by the Government Code from receiving good conduct time credit." But appellant did not object to the charges below and did not preserve his complaint for our review. Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006). Additionally, we note that appellant was convicted of robbery and aggravated robbery with a deadly weapon, not murder, and the trial court was required by statute to instruct the jury concerning appellant's eligibility for good conduct time credit. See id. art. 37.07, § 4(a) (instruction when offense is for, among others, aggravated robbery), § 4(c) (instruction when offense is for, among others, robbery) (West Supp. 2010); Cagle v. State, 23 S.W.3d 590, 594 (Tex. App.-Fort Worth 2000, pet. ref'd). The jury charge in each case tracked the appropriate statutorily mandated instruction. We resolve appellant's second issue against him. In issue three, appellant argues that the 203rd District Court of Dallas County, Texas did not obtain jurisdiction over these indictments because the indictments were returned to the 291st District Court of Dallas County, Texas, and there is no transfer order in the records. When two courts have concurrent jurisdiction, article 4.16 of the code of criminal procedure states that jurisdiction is in the court where the indictment was filed first. Mills v. State, 742 S.W.2d 831, 834-35 (Tex. App.-Dallas 1987, no pet.) (citing Tex. Code Crim. Proc. Ann. art. 4.16 (West 2005)). We stated that the purpose of article 4.16 is "to `prevent any confusion or contention between different courts having concurrent jurisdiction and seeking to exercise jurisdiction, and not to shield an accused from prosecution.'" Id. at 835 (quoting Flores v. State, 487 S.W.2d 122, 125 (Tex. Crim. App. 1972)). We concluded that article 4.16 did not render the proceedings in the second court void, but made them susceptible to a plea to the jurisdiction. See id. We also held that a defendant is required to file a formal plea to the jurisdiction to preserve this issue for our review. Id. Appellant concedes that he did not file a plea to the jurisdiction below. Consequently, he presents nothing for our review. We resolve issue three against appellant. We affirm the trial court's judgments.