Opinion
No. 05-09-01098-CR
Opinion Filed June 29, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 2 Dallas County, Texas, Trial Court Cause No. F09-00780-I.
Before Justices MOSELEY, RICHTER, and LANG-MIERS.
MEMORANDUM OPINION
The State indicted appellant Rheashad Lamar Lott for engaging in organized crime. The indictment alleged that appellant shot the complainant with a firearm with the intent to establish, maintain, or participate as a member of a criminal street gang. The jury found appellant guilty and assessed punishment at 70 years incarceration and a $10,000 fine. On appeal, appellant argues that the evidence is insufficient to support the conviction and that the trial court erred by admitting his oral statement into evidence. We affirm the trial court's judgment. In his first and second issues, appellant argues that the evidence is legally and factually insufficient to support his conviction. In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). We defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326. A person commits an offense if, with the intent to establish, maintain, or participate as a member of a criminal street gang, the person commits or conspires to commit aggravated assault. Tex. Penal Code Ann. § 71.02(a)(1) (West 2011). A "criminal street gang" is "three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities." Id. § 71.01(d). Appellant argues that the evidence is insufficient to prove he was a member of a criminal street gang or that he was the one who shot the complainant. He contends that the testimony that he belonged to a gang was inconsistent and easily explained. The evidence showed that the complainant, Corey Ibrahim, went with friends to the YMCA in Grand Prairie, Texas to play basketball, but when they arrived employees of the YMCA turned them away because the YMCA was closing early for the Memorial Day holiday. As Ibrahim and his friends were leaving, two cars pulled up to the YMCA and the occupants began yelling gang names. Unbeknownst to Ibrahim and his friends, rival gangs had planned to have a fist fight at the YMCA. A third car drove up during the fight; appellant and about seven others were in the third car. Appellant jumped out of the car and began fighting. Approximately 20 to 25 people were involved. At some point, appellant and Ibrahim began arguing and appellant shot Ibrahim between the eyes at close range. Ibrahim suffered permanent, disabling injuries. After Ibrahim fell, appellant ran back to the car. A YMCA employee wrote down the license plate number of the car appellant got in as the car left. The police investigation led to appellant. Two people involved in the fight identified appellant as the person who shot Ibrahim. They testified they saw appellant with the gun. The State introduced evidence that appellant, as he was getting out of the car at the YMCA, said that he was "going to murk one of those niggas." The witness said that "murk" means "kill." The evidence also showed that appellant told one of the people in the car in which he was riding that he thought he had shot someone and that he told the driver he got rid of the gun. The State also introduced evidence that the people fighting were members of the gangs UTG (Untamed Gorillas), KOS (Knockout Squad), CG (Certified Gorillas), and TRN (Top Rank Niggas). One of the State's witnesses testified that appellant said he was a member of UTG. Another witness said appellant told the driver of the third car, after the shooting, "to hurry up and go back to the north." The witness explained that "north" meant a certain area in Arlington known as UTG gang territory. The State also introduced testimony by Detective Raymond Mullikin of the Arlington Police Department. Detective Mullikin testified that he is in the gang unit and that he assisted the Grand Prairie Police Department with its investigation of this case. He said UTG is a criminal street gang in Arlington that has over 50 confirmed members. He demonstrated two gang signs that UTG members use and described one as a "U." He said members of UTG refer to the gesture as "throwing up their Us." Detective Mullikin identified photographs that he found on appellant's MySpace page showing appellant "throwing up his Us." Appellant testified and denied knowing about the gang fight or that they had driven to the YMCA in Grand Prairie; he thought they had driven to Irving. He said that when he was interviewed by police detectives two days after the shooting, the detective asked him if he was involved in a shooting in Grand Prairie and he said no. He said he did not lie to the detective because he thought he was in Irving and the detective did not say he was investigating a shooting at the YMCA. Appellant told the jury that he did not shoot Ibrahim, that he did not tell anyone he thought he shot someone, and that he did not tell anyone he got rid of a gun. He said the people who testified otherwise were lying. He also testified that the hand gesture he was making in the photographs on his MySpace page was not a gang sign, but was an "H" for Houston because he was from Houston. He said that Dallas is known as "D Town" and Houston is known as "H-Town," and the hand gesture is an "H" not a "U." He also explained that he has a tattoo of Houston's skyline, which was depicted in one of the State's photographs admitted as evidence, and that none of his tattoos were gang related. Considering the evidence under the appropriate standard, and recognizing that the jury determines issues of credibility, we conclude that the evidence is sufficient to support a finding that appellant shot the complainant with the intent to establish, maintain, or participate as a member of a criminal street gang. We resolve issues one and two against appellant. In issue three, appellant argues that the trial court abused its discretion by admitting his oral statement into evidence. He contends that the requirements of article 38.22, § 3(a)(5) were not followed. Article 38.22, section 3 states that five requirements must be met before an oral statement of an accused made as a result of custodial interrogation is admissible against the accused. Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a) (West 2005). One of those requirements is that "an electronic recording . . . is made of the statement." Id. § 3(a)(1). Section 3(b) requires that the recording be preserved for a certain period of time after a conviction. Id. § 3(b). After appellant testified about his interview with the detective in which he denied involvement in the offense because he thought he was in Irving instead of Grand Prairie, the State called the detective who interviewed appellant in rebuttal. Appellant objected to the testimony under article 38.22 and the trial court overruled the objection. The detective then testified that when he interviewed appellant two days after the offense, he told appellant that he was investigating the shooting that occurred at the YMCA in Grand Prairie and that appellant denied any involvement. The detective also testified that he told appellant the names of others involved at the YMCA, and appellant still denied being there or having anything to do with it. On cross-examination, the detective testified that the oral statement had been recorded and appellant asked for the recording. The State indicated that it had already spoken to appellant about the recording and asked to take the witness on voir dire. The detective testified that the recording could not be located after Grand Prairie got a new computer system and, consequently, could not be produced to appellant. The trial court overruled appellant's request that the detective's testimony be stricken because the State could not produce the recording of the statement. On appeal, appellant argues that the statement was inadmissible because the requirements of article 38.22, section 3(a)(5) were not followed. The State argues that the statement was admissible in rebuttal to impeach appellant's credibility under article 38.22, section 5, which states:
Nothing in this article precludes the admission of a . . . voluntary statement, whether or not the result of custodial interrogation, that has a bearing upon the credibility of the accused as a witness, or of any other statement that may be admissible under law.Id. § 5. Section 5 of article 38.22 is an exception to the requirements of section 3 and allows the admission of an accused's oral statement to impeach or contradict the accused's testimony when the accused chooses to testify as a witness at trial. See Tigner v. State, 928 S.W.2d 540, 542 n. 4 ("If appellant had testified in support of his alibi claim, the State could unquestionably have used his oral statement for impeachment, and the issue of its admissibility under Article 38.22 § 3(a)(5), would be academic. See Article 38.22 § 5."); Polk v. State, 170 S.W.3d 661, 665 (Tex. App.-Fort Worth 2005, pet. ref'd). Appellant does not contend that his statement was involuntary. We conclude that the trial court did not abuse its discretion by admitting appellant's oral statement to impeach his credibility as a witness. See Tex. Code Crim. Proc. Ann. art. 38.22, § 5. We resolve issue three against appellant. We affirm the trial court's judgment.
Detective Mullikin testified that a "confirmed" gang member is a person who meets at least two of six criteria: (1) the person admits to being a gang member, (2) a reliable person tells the police the person is a gang member; (3) they get a corroborated statement that someone is a gang member; (4) the person uses gang signs or dresses in gang colors; (5) the person hangs out at known gang locations with known gang members; and (6) the person has been detained or arrested with known gang members or arrested for a crime that is consistent with gang activity.
As depicted in photographs introduced into evidence, the "U" is formed with the index and pinky fingers.