Opinion
No. 05-05-00450-CR
Opinion issued March 30, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F03-27742-VI. Affirmed.
Before Justices MORRIS, BRIDGES, and FRANCIS.
OPINION ON REHEARING
We address appellant's complaint as now restated in his motion for rehearing in the interest of justice. We withdraw our opinion of January 30, 2006 and vacate our judgment of that date. This is now the opinion of the Court. A jury convicted Julian Luis Cabrera of murder. He complains in a single point of error that the trial court erred in admitting into evidence testimony about his gang affiliation. Concluding appellant's complaint is without merit, we affirm the trial court's judgment. The background of the case and the evidence adduced at trial are well known to the parties, and therefore we limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1 because the law to be applied in the case is well settled. During the punishment phase of appellant's trial, a police officer testified that appellant had a gang file as a member of the Eastside Homeboys. At that time, defense counsel objected to the testimony on the basis of hearsay. The trial court overruled the objection. The officer further testified that members of the Eastside Homeboys gang had been arrested for "[p]retty much any violent crime that you can think of" and that the gang was the "most violent" gang in Garland, Texas. In appellant's sole point of error on appeal, he contends the trial court "erred in admitting hearsay evidence that [he] was a member of the Eastside Homeboys over [his] timely objection." He particularly contends the trial court's erroneous admission of the testimony into evidence harmed him because proof of appellant's gang membership allowed the State to elicit further evidence about the activities and reputation of the Eastside Homeboys gang. A trial court may admit evidence of a gang's reputation and bad acts, without proving the defendant necessarily committed the bad acts, so long as the jury is (1) provided with evidence of the defendant's gang membership, (2) provided with evidence of the 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 the reputation or character of the defendant. Beasley v. State, 902 S.W.2d 452, 457 (Tex.Crim.App. 1995). Here, appellant contends that, had the police officer's hearsay testimony about his gang file been excluded by the trial court, the State could not have established his membership in the gang. We disagree. Appellant himself testified at punishment that he associated with the Eastside Homeboys but had not been "crossed" into the gang. He admitted he had fought with members of rival gangs at school. He admitted that most of his friends were members of gangs and that he had "flash[ed] gang signs." And he does not now argue that he was compelled to testify after the police officer revealed his gang file. Appellant also displayed for the jury gang tattoos on his hand and a tattoo on his stomach of the letters "E S H." Appellant testified that the tattoo stood for Eastside Homeboys. The officer who had testified about appellant's gang file also testified about appellant's book-in photograph, which was admitted into evidence. The photograph shows notches shaved into appellant's eyebrows. Explaining these marks, the officer testified that members of the Eastside Homeboys and other gangs often shave their eyebrows in this distinctive way. In addition, the State called another police officer to testify at punishment that appellant had told him he was a member of the Eastside Homeboys. Appellant contends the State was compelled to call the officer as a rebuttal witness of his cross-examination of the first officer, but there is no evidence in the record that the second officer was called as a rebuttal witness or that the officer's testimony would have been inadmissible had the first officer not testified. During the guilt-innocence phase of trial, appellant's companion was overheard telling him, "[Y]ou're going to do it, you're down for Eastside." A mother of one of appellant's friends testified that she thought he was in the Eastside gang because he associated with members of the gang. The mother explained that a filled-in teardrop tattoo meant, in the Eastside gang, that the tattooed person had killed someone. Appellant's companion at the time of the shooting testified that, moments before he shot the deceased, appellant was talking about getting "his teardrop." Even if the trial court erred in admitting the testimony about appellant's gang file, we conclude there was still sufficient evidence in the record to show appellant's membership in the Eastside Homeboys. See Stevenson v. State, 963 S.W.2d 801, 803-04 (Tex.App.-Fort Worth 1998, pet. ref'd). The State could have proven appellant's gang membership without the evidence of his police gang file. Accordingly, appellant was not harmed by the alleged hearsay testimony. See Tex.R.App.P. 44.2(b). We resolve appellant's sole point of error against him. We affirm the trial court's judgment.
In our original opinion, we concluded that appellant's complaint was waived for failing to raise the proper objection at trial. Appellant now argues in his motion for rehearing that his appellate complaint is, in fact, the hearsay nature of the police officer's testimony about his gang file. In his initial appellate brief, appellant almost exclusively addressed the harmful nature of the general gang testimony and never cited any supporting authority for his contention that the police officer's testimony about his gang file was hearsay.
Appellant had previously testified in his defense during the guilt-innocence phase of trial.