Opinion
NO. 01-16-00040-CR
03-02-2017
JOSE GERARDO SILVA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court Harris County, Texas
Trial Court Case No. 1307651
MEMORANDUM OPINION
Appellant, Jose Gerardo Silva, was charged by indictment with murder. A jury found him guilty and assessed punishment at life imprisonment. In two issues on appeal, Appellant argues that the State failed to provide adequate notice of its expert on gang affiliation and that the evidence of Appellant's gang affiliation was legally insufficient.
See TEX. PENAL CODE ANN. § 19.02(b)(1)-(2) (Vernon 2011).
We affirm.
Background
The complainant, Theodore Mitsakos, got into a verbal altercation with the occupants of a black Ford pick-up truck on October 19, 2010. As the altercation escalated, the complainant fled in his truck, and the driver of the Ford pursued him. Two of the occupants in the Ford began firing at the complainant. One bullet hit the complainant in the back of the head, killing him.
In 2011, the State charged Appellant with the offense of murder for the complainant's death. Before trial, Appellant filed a motion requesting the list of the State's witnesses. He also filed motions requesting notice of any crimes, wrongs or bad acts of his that the State planned to introduce at trial. Finally, he requested disclosure of any experts the State would present during trial.
Without waiting for an order from the trial court on any of these motions, the State responded. It filed a disclosure of experts, which identified Sergeant J. Brooks as an expert. The disclosure stated Sergeant Brooks "[w]ill testify as an expert in police investigation, homicide investigation, crime scene investigation, police procedure and policy." The disclosure did not explicitly state that any expert would testify about gang activity or affiliation. The State later filed a supplemental disclosure of experts. Again, no mention of gang activity or affiliation was made. The State also filed a notice that it intended to produce evidence that Appellant "is a member of the Pura Raza Mexicana criminal street gang."
The guilt-innocence phase of the trial concluded on a Friday. That day, the State disclosed to Appellant that it would call Sergeant Brooks during the punishment phase to testify as an expert on gangs and to offer an opinion on Appellant's affiliation with a gang. The following Monday, Appellant objected to the State calling Sergeant Brooks to testify as an expert on gangs on the grounds that the State had failed to give adequate notice that Sergeant Brooks would testify as an expert on this topic. The trial court overruled the objection. Appellant then raised relevance and improper character evidence objections. The trial court did not rule on these objections.
During the charge conference, the State affirmatively stated that it would not be attempting to prove any acts of Appellant involved in or aiding criminal gang activity. The only evidence would be of Appellant's association with a gang. Sergeant Brooks's testimony bore this out. He testified about certain indicators that suggested to Sergeant Brooks that Appellant was a member of the Partidos Revolucionario Mexicano gang. Sergeant Brooks acknowledged that gang association was not criminal itself. Further, no testimony was presented identifying Appellant's participation in any criminal gang activity.
While sharing the same initials, this is different from the Pura Raza Mexicana gang identified in the State's notice.
Notice of Expert
In his first issue, Appellant argues the trial court abused its discretion by allowing the State to present Sergeant Brooks as an expert on gang affiliation. Appellant argues that the State failed to give sufficient notice that Sergeant Brooks would testify as an expert on that topic.
A. Standard of Review & Applicable Law
Upon request, the State is required to provide notice of any expert witnesses it intends to call at trial. See TEX. CODE CRIM. PROC. ANN. art. 39.14(b) (Vernon Supp. 2016). "If the trial court allows a witness who was not on the State's list to testify, we review that decision for an abuse of discretion." Hamann v. State, 428 S.W.3d 221, 227 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd).
The trial was governed by an earlier version of the Texas Code of Criminal Procedure, which required a ruling from the trial court before the State had to produce the response. Since the State responded to the request without awaiting an order from the court, the distinction is not relevant in this case.
B. Analysis
The notice requirement only obligates the State to identify the name and address of the experts to testify. CRIM. PROC. art. 39.14(b). The State identified Sergeant Brooks as one of its experts to testify. Appellant argues that, because the State went further and identified certain areas of expertise in which Sergeant Brooks would testify, it obligated itself to limit Sergeant Brooks's testimony to those areas. The statute creates no such obligation. See id. Nor has any obligation arisen in the case law. See contra Vasquez v . State, No. 14-07-00802-CR, 2009 WL 943868, at *11 (Tex. App.—Houston [14th Dist.] Apr. 9, 2009, pet. ref'd) (mem. op., not designated for publication) (holding State satisfied notice requirement even though expert testified in area not listed in notice).
Appellant does not complain about any failure to provide an address for Sergeant Brooks.
Appellant analogizes the failure to provide notice that Sergeant Brooks would testify about gang affiliation to the fatal variance doctrine that applies to indictments. Appellant urges this Court to extend the fatal variance doctrine to the notice requirement under article 39.14. We decline.
The charging instrument in a criminal case, such as an indictment, "must be specific enough to inform the accused of the nature of the accusation against him so that he may prepare a defense." State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). A fatal variance between an indictment and the evidence presented at trial occurs when the evidence presented at trial is so different from the allegations in the indictment that the defendant was deprived of the required notice of the nature of the accusation against him. See Gollihar v. State, 46 S.W.3d 243, 257-58 (Tex. Crim. App. 2001).
A fatal variance occurs, then, when the State fails to satisfy its initial obligations of notice to the defendant. See id. Here, the State was required only to provide notice of the name and address of the witness. CRIM. PROC. art. 39.14(b). This doctrine does not speak at all about the State restricting itself by going beyond the requirements of the notice and, accordingly, is not relevant to Appellant's argument.
We overrule Appellant's first issue.
Sufficiency of Evidence of Gang Affiliation
In his second issue, Appellant argues that the evidence was insufficient to prove beyond a reasonable doubt that Appellant is affiliated with a gang.
The evidence of Appellant's gang affiliation was introduced during the punishment phase of the trial. "Generally, the factfinder's decision of what particular sentence to assess is a 'normative, discretionary function' that does not depend on the resolution of specific facts." Jordan v. State, 256 S.W.3d 286, 291 (Tex. Crim. App. 2008). The jury's discretion to impose any punishment within the prescribed range is "[s]ubject only to a very limited, 'exceedingly rare,' and somewhat amorphous Eighth Amendment gross-disproportionality review." Ex parte Chavez, 213 S.W.3d 320, 323-24 (Tex. Crim. App. 2006). Otherwise a sentence that falls within the legislatively prescribed range "is unassailable on appeal." Id. at 324.
Appellant points out that evidence of bad acts of the defendant presented during the punishment phase must be proved beyond a reasonable doubt. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (Vernon Supp. 2016) (requiring evidence of extraneous crimes or bad acts "committed by the defendant or for which he could be held criminally responsible" to be proven beyond reasonable doubt). Appellant argues that, because evidence of bad acts do depend on resolution of specific facts and must be proven beyond a reasonable doubt, the evidence should be subject to a sufficiency review. Even if we accepted his argument, we hold Appellant cannot prevail here.
But see Thompson v. State, 4 S.W.3d 884, 886 (Tex. App.—Houston [1st Dist.] 1999, pet. ref'd) (holding sufficiency of evidence of extraneous offense admitted in punishment phase is not subject to sufficiency review).
Evidence of gang affiliation can be presented in at least two ways. First, it can be presented as character evidence. Beasley v. State, 902 S.W.2d 452, 456 (Tex. Crim. App. 1995); Sierra v. State, 266 S.W.3d 72, 77 (Tex. App.—Houston [1st Dist.] 2008, pet. ref'd). In addition, it can be presented as evidence of bad acts. Sierra, 266 S.W.3d at 78. To be used as evidence of bad acts, the evidence must establish gang related acts that the defendant committed or for which the defendant could be held criminally responsible. Id. at 79; CRIM. PROC. art. 37.07, § 3(a)(1).
Before the State presented Sergeant Brooks to testify on gang affiliation, the State expressly stated to the trial court that it would not be attempting to prove any acts of Appellant involved in or aiding criminal gang activity. The only evidence would be of Appellant's association with a gang.
The evidence bore that out. Sergeant Brooks, who has experience investigating gang-related murders, testified about certain indicators that suggested to him that Appellant was a member of the Partidos Revolucionario Mexicano gang. He testified about Appellant being documented as a gang member in a database maintained by the State. He also testified that Appellant's ex-girlfriend and her daughter both identified Appellant as a gang member.
It also forms the basis of Appellant's argument that the evidence is insufficient to establish bad acts.
Sergeant Brooks acknowledged, however, that gang association was not criminal itself. Nothing in his testimony identified any gang-related criminal activity in which Appellant had participated.
Evidence of Appellant's gang affiliation, then, was presented as character evidence. Character evidence does not require proof beyond a reasonable doubt. See CRIM. PROC. art. 37.07, § 3(a)(1). Accordingly, Appellant's ground for arguing that a sufficiency review should be conducted is not relevant to the evidence presented a trial.
We overrule Appellant's second issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice Panel consists of Justices Keyes, Higley, and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).