Opinion
No. 05-02-01688-CR.
Opinion Filed February 25, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 2 Collin County, Texas, Trial Court Cause No. 2-85050-01. Affirmed.
Before Justices FRANCIS, LANG and LANG-MIERS.
MEMORANDUM OPINION
Appellant Tuan Vu Phan appeals his conviction for burglary of a motor vehicle, for which the trial court assessed punishment at 365 days in the county jail. The facts of this case are known by the parties, and we do not recite them in detail. We issue this memorandum opinion in compliance with Tex.R.App.P. 47.1. We affirm the trial court's judgment. In his sole issue Phan complains that the trial court erred when it allowed the State to attempt to impeach a defense witness, Viet Adrick Tran, on a collateral matter. Prior to appellant's trial, witness Tran pled guilty to the same burglary of a vehicle offense. At trial, Tran testified that he and another man came up with the plan to burglarize the car while appellant was inside an apartment talking to someone about buying a cell phone. He said appellant did not know anything about the offense and arrived at the scene only after the burglary had taken place. The following occurred during the cross-examination of Tran:
Prosecutor: Are you a member of the Lao Bloods in Fort Worth, Mr. Tran?
Witness: I've heard of them, I don't know —
Defense Attorney: Object to that, Your Honor. It's an improper question. Improper impeachment.
The Court: Overruled. You may answer.
Prosecutor: Are you a member of the Lao Blood gangs in Fort Worth?
Witness: No, sir.
Prosecutor: Not?
Witness: No, sir.
Prosecutor: And you were not out breaking into this vehicle as part of gang activity?
Witness: No, sir.Appellant contends that the trial court erred in allowing the State to attempt to impeach a defense witness on a collateral matter in violation of Rule 608 of the Rules of Evidence. Tex. R. Evid. 608(b). Any complaint of error was waived. When the State attempts to connect a witness to gang affiliation, and at the conclusion of the evidence that connection is not made, appellant must object and request that the testimony be stricken from the record and that the jury be instructed to disregard it or the objection is waived. Appellant failed to do so and waived his right to complain on appeal. Fuller v. State, 829 S.W.2d 191, 198-99 (Tex.Crim. App. 1992). Additionally, although appellant objected to the question asking about membership in the gang, and the objection was overruled, he allowed the State to question witness Tran on whether the burglary was part of gang activity. Any complaint concerning the admission of evidence is waived when a party fails to object to the same or similar evidence admitted at another point in the trial. Jones v. State, 111 S.W.3d 600, 606 (Tex. App.-Dallas 2003, pet. ref'd). Because appellant failed to object to the last question concerning the witness's gang activity, any error in allowing either question was waived. However, even absent waiver, we do not find error. The scope of cross-examination is within the sound discretion of the trial court. Toler v. State, 546 S.W.2d 290, 295 (Tex.Crim.App. 1977). The trial court's determination of admissibility will not be reversed on appeal unless a clear abuse of discretion is shown. Werner v. State, 711 S.W.2d 639, 643 (Tex.Crim.App. 1986). A party should be allowed to show all facts that tend to demonstrate bias, interest, prejudice, or any other motive, mental state, or status of the witness that, fairly considered and construed, might even remotely tend to affect the witness's credibility. Coleman v. State, 545 S.W.2d 831, 834 (Tex.Crim.App. 1977); Hinojosa v. State, 788 S.W.2d 594, 600 (Tex. App.-Corpus Christi 1990, pet. ref'd). "Extreme prejudice ensues from a denial of the opportunity to place a material witness in his proper setting as regards his testimony." Harris v. State, 642 S.W.2d 471, 476 (Tex.Crim.App. 1982). Evidence of gang membership bears on the witness's veracity and bias. McKnight v. State, 874 S.W.2d 745, 746 (Tex. App.-Fort Worth 1994, no pet.). It is sufficiently probative of the witness's possible bias in favor of the defendant to warrant its admission into evidence. U.S. v. Abel, 469 U.S. 45, 49 (1984). The admission of testimony regarding gang membership was not error. Finally, any error in allowing the questions was harmless. An error that does not affect substantial rights must be disregarded. Tex.R.App.P. 44.2(b). Tran denied being a member of a gang and denied that the offense was gang-related. The line of questioning went no further and was not argued to the jury. We overrule appellant's sole issue and affirm the trial court's judgment.