Beasley v. State

452 appellant’s invitation to held We should decline at 508-509. We the defendant’s

S.W.2d reasoning of this presumed kill when he determine the correctness intent to Cook 6.04(b)(2) applicable § in- to the instant because it is not pistol. Under fired realized he had killed support for case. When tent was sufficient a conviction mother, Williams, appellant con- Busby. the infant but not the attempted murder also, eventually v. tinued to killed the 567 at 509. See McNeal shoot and S.W.2d Thus, murders were not com- (Tex.Cr.App.1980) 807 mother. (Tex.Penal 6.04(b)(2) Consequently, ap- § applies single to mitted act.” Code Ann. “a criminally responsible both prosecutions pellant Tex.Penal Ann. for under Code and, 19.02(a)(1)); Aguirre of transferred in- § 732 murders and the doctrine v. (Tex.Cr.App.1982) expanded. (Opinion impermissibly on tent was not 320 (Doctrine of intent Rehearing) transferred hand, majority accepts On the other applies prosecutions under Tex.Penal invitation, considers those cases 19.02(a)(3).). § Code Ann. reasoning, applied holds when but that such 19.03(a)(6) § would lead “anomalous Consequently, under the doctrine of trans- majori- 6.04(b)(2), 441. Because the intent, results.” Ante at is crimi- ferred not ty’s of that issue is essential discussion death. nally responsible infant’s merely case it the resolution of the instant However, appellant contends the evidence is dictum,3 obiter to support insufficient a convic- nevertheless Ann. tion under Tex.Penal Code join only judg- I With these comments 19.03(a)(6). Specifically, appellant con- ment of the Court. intent to death he lacked the cause the tends because intent had been the mother Appellant argues infant.

transferred to the improper to transfer the intent to

that it is infant, and, death to

cause the mother’s mur- prove intent to the mother’s

retain that

der. correctly argues

Appellant that we issue, us to and invites never addressed BEASLEY, Appellant, Roosevelt reasoning of two from the adopt eases v. People v. Appeal California. Courts of Texas, Appellee. Birreuta, Cal.Rptr. Cal.App.3d 208 STATE 162 and, Czahara, (5th Dist.1984); People No. 1365-93. (1st Cal.Rptr. CaLA.pp.3d Dist.1988). these cases the rea- Courts Texas, Appeals of Court of Criminal soned: En Banc. intent purpose of the transferred 28, 1995. June prosecution pun-

rule —to ensure culpability accord with ishment —would by convicting a of two be served single attempted murders for

or more kill one he intended to

act which

person.

Czahara, (emphasis add- Cal.Rptr.

ed). single in "a not committed majority’s the murders were discussion Clinton believes majority’s than Consequently, is more obiter dictum because discussion of of this issue act.” majority which the frames and intent, the manner in to two murders in as it relates transferred Ante, disagree. at 434. resolves the issue. act,” single to resolve this “a is not essential Regardless the issue of the manner which point of error. same; resolved, the facts remain framed (on appeal only),

David L. Richards Fort Worth, appellant. for Marshall, Curry, Atty. Betty Tim Dist. Mallín, Charles M. Anne E. Swenson and Moore, Attys., Terri Asst. Dist. Robert Hut- tash, Worth, Austin, Atty., Fort State’s for the State.

OPINION ON APPELLANT’S PETITION FOB DISCRETIONARY REVIEW OVERSTREET, Judge.

Appellant felony indicted for the of murder, Code, fense V.T.C.A. Penal 19.02(a)(1), alleged committed been day February on or about the 3rd County. guilty in Tarrant He was found by jury in the 372nd District day County Tarrant on the 13th of Novem ber, 1992. The assessed imprisonment Department life in the Texas Justice, Division, of Criminal Institutional $10,000. Appellant’s and a fine of conviction Fort was affirmed Worth Court Beasley Appeals on November (Tex.App. 864 S.W.2d 808 — Fort 1993). lence, drug granted peti criminal such as traffick- Worth We robberies, discretionary ing, if evi tion review decide witness intimidation.” generally engaged of bad conduct explained Griego that one manner Officer gang members is admissible absent a show Crip gang identify in which members them- ing of a such connection between conduct through distinguishing their selves is cloth- appellant.1 ing. explained in He detail that: garb, Crips are wear blue “[t]he I. PERTINENT known to SUMMARY OF FACTS shirts, shoes, pants such blue tennis During phase guilt/innocence the of the shoelaces, them, caps logo with on Raider’s trial, testimony given by the was victim that jackets logo, Raider’s with black dark a party he was with the and third deceased shirts, in with other blue combination blue 1,1990 February on at Cheddar’s Restaurant garb....” along appellant the restaurant when entered man, ladies, young another two and a with Griego also that when Officer testified the baby. that The victim testified he and his out”, Crips “Cripped were out or dressed appellant noticed male friends that and his along they garb, the other with blue would jeans a wearing friend were with black Raid- rags wear or handkerchiefs their blue cap jacket. ers and L.A. Lakers Both men pockets. heads or their hanging also had blue bandannas out of their Griego personally Officer testified that he pockets. Subsequently, back deceased he appellant. knew He testified that had appellant and a conversation and ex- had in the of appellant presence seen other later, beeper changed days Two numbers. members, Crip known that he had and seen appellant met and the deceased the victim wearing type gang clothing him of that alley, bowling of an lured the two them to if he asked had earlier described. When he area, them isolated shot both of and then reputation appellant’s knew commu- arrived, police money. took their When nity peaceful being law-abiding and for that he the victim informed them was “shot citizen, Griego that he responded officer did Crips.” some reputation know it was of his and that bad. trial, During presented witnesses the State two who testi- II. COURT OF APPEALS’ HOLDING appellant’s gang membership. fied about First, affirmed Appeals the victim testified that while in Ched- The Second February 1st, judgment holding trial that he over- court dar’s Restaurant on deceased, appellant say “I am a admitted was not evidence an heard to the evidence East-something Crips.” offense and therefore admis part of the The re- extraneous was (Tex. gang Beasley sible. regarding mainder of the 1993). that given by App. It stated arti was Leo Worth and — Fort cle of Criminal Griego, police from California. Offi- 37.07 3 Texas Code officer provide police and the Evidence Griego that he Procedure Rules of cer testified was California, Barstow, ap- for the state or officer from where the admission Texas, moving anything that the court pellant had defendant lived before relevant, past including the defendant’s police that he had been a officer for the deems record, prior reputation, his twenty years, that he had criminal interactions appeals at 810. court of gangs including Crips for the fifteen character. with last explained rejected that appellant’s argument that evi years. Griego Officer further it is evidence is a has an inadmissible black street dence was because goal, ap The court “allegiance for en- an extraneous offense. a common objection peals appellant’s gage activity.” in violent and criminal He first stated “[tjheir untimely, being admitted was specifically, is vio- added cause members, by gang Appellant’s question generally for review as fol- duct 1. reads appeals erred in having lows: Whether the court to link such without introduce, ruling proper that it for the state to conduct. purposes punishment, con- of bad explain and went further to that the testimo CONTENTION IV.STATE’S ny objected only that was to was the witness’ first contention is that State’s opinion of the character and nature of the appellant’s petition Court should dismiss be appeals Id. at 811. The court of cause has failed to address appellant’s likened affiliation with the appeals’ holding court of affiliation, religious to one’s and reasoned Therefore, objection untimely. the State Beasley that the evidence that awas member asking this Court maintains aof street dedicated to violence and grant advisory opinion. The State next criminal other is admissible at the if this court does decide contends that even punishment phase of the trial. Id. at 810- ease, of this court of the merits Lastly, purpose because this evidence’s decision should be affirmed because the evi general to show nature of the unadjudicated ex dence was not evidence of gang, the court of found that was consequently was traneous offenses and unnecessary appellant for the State to link State, properly citing admitted. The Harris every single gang may kind of crime that the State, 207, v. 224 (Tex.Cr.App. 738 S.W.2d engaged in. 1986), asserts that order to establish evi offense, dence of an extraneous the evidence III.APPELLANT’S CONTENTION must demonstrate that an offense was com Appellant appellant claims that the that mitted and that was connected with evidence State, regarding According the offense. the was admitted the conduct of the the gang testimony given by was all that re inadmissible. He maintains was the witness garding gang activity that the evidence that was offered not as the State introduced unadjudicated specific unadjudicated was evidence of extraneous of- evidence offenses gang. According gang appellant, fenses of the the or of but the appellant, as opinion gang’s gener the State introduced of the witness as to the evidence these unad- judicated character, gang extraneous al and offenses of the so nature and is therefore jury during punishment that the would consider these acts admissible under Article while 3(a). assessing punishment. his Because the evi- by unadjudi- dence introduced the State was asserts, citing The State also Miller-El v. evidence, appellant cated extraneous offense State, 892, (Tex.Cr.App. 782 895-97 S.W.2d State, argues that v. Grunsfeld 1990) Murphy and v. S.W.2d controls, (Tex.Cr.App.1992) and conse- (Tex.Cr.App.1988), testimony that the is ad quently, admitting unadjudicated extraneous punishment phase missible at the as circum offense evidence in the stances of the offense or offender. The State noncapital offense was reversible error. argues extremely that this information is rel alternative, appellant argues the that given evant and the much should be as the event that this Court finds that the testi possible relevant information as so that mony unadjudieated offense evi possi can make the most informed decision dence, neglected the State to demonstrate concerning appellant’s punishment. ble Ad that Crips was a member of the or ditionally, it avers that “circumstances of the in, knowledge that he or had evidence, offender” which includes evidence criminal activities attributed to To the background, religious education and affilia contention, support refers tion, evidence, is not limited to character (Tex.Cr. Urbano v. concerning appellant’s therefore Furthermore,

App.1992). citing appellant, gang membership is admissible. Smith, People 141 Ill.2d 152 Ill.Dec. (1990), 565 N.E.2d 900 contends that V.ANALYSIS being in presence gang members is gang objec insufficient alone to show that one is a The record reveals that the member, ease, disputed testimony timely, and in this there was no clear tions to the were presented appellant actually accordingly we will address merits of crips gang. awas member of the this case. Article of the Code of case, 117. In that member- “Regard- Id. at provides Procedure Criminal jury’s plea and whether the not admitted for the ship less evidence was by judge jury, evi- character, be assessed but evaluation of defendant’s may, by Rules of permitted knew he would to show whether Urbano Evidence, by offered the state and profits, which would and share advance court deems as to matter the of remuneration. prove the element including prior sentencing, relevant case, “gang all of the In this defendant, general criminal record of the pun presented during the evidence” Therefore, if reputation and his character.” trial, a rational phase ishment rep- character or evidence of the defendant’s court, es that the State had by could have concluded is deemed relevant utation 1) during punishment appellant was things: the evidence is admissible three tablished 2) of Evidence. permitted if it is the Rules gang; Crips a member 404(c) Rules of Evidence Rule of the Texas misconduct; Crips gang was involved punishment, “evidence provides that 3) reputation that the had bad prosecu- be offered accused showing appel community. As far as prior criminal record of the tion as to the membership, lant’s of his charac- [and] [o]ther accused personal Griego that he had revealed Officer byor be offered an accused ter wearing gang col ly witnessed prosecution.” clothing indicated ors and which Additionally, gang. membership Crips in the Evidence Rule 401 of the Rules of Criminal had seen Griego testified that he Officer hav- “relevant evidence” as “evidence defines presence in of other known ing any tendency to make the existence also Crips gang members. The State consequence fact of to the determination gang that was that the probable probable or less showed of the action more Again, they the evidence.” accom than it would be without in misconduct. involved through the of Officer plished this State, 775 Ybarra v. Griego Griego. testified Officer In pet.), no the Tenth (Tex.App.—Waco and criminal behav gang engaged violent membership Appeals gang held robberies, ior, drug trafficking, wit “such as the character of the is admissible to show Finally, because of all intimidation.” ness reputa “[i]f court added that accused. The regarding the that was heard the evidence jury membership gives the valu gang tion of jury gang, could of the a rational misconduct regarding the character able information reputation in gang’s that the conclude allowed.” Id. it should be deed bad. court reasoned that evidence The Ybarra membership relevant because the gang concerning appellant’s The evidence of the defen jury can make a determination it re relevant because gang fact that the character based on the dant’s This information to his character. lates of a defendant is member however, enough for the may not be alone appel is mis- decision of Appellant’s jury reliance on Urbano to make an informed v. 887 S.W.2d placed. Urbano It for the character. is essential lant’s can be (Tex.Cr.App.1992). The case at bar gang types activities the know the examining distinguished from Urbano engages in so that can deter generally gang of the evi- purpose of the introduction positive or if is a mine Urbano, this Court eases. dence both character, and subse negative aspect of his that: held Only after as a whole. quently his character informa provided with this jury has been beyond jurors could not conclude “Rational of how can be a fair evaluation tion there simply [UrbanoJ’s doubt a reasonable mem membership reflects on aware gang that he was membership in the character. ber’s rules.” gang’s all of the 3(a), to make it consistent with the State’s VI. CONCLUSION 37.07, position in Current Article Grunsfeld. necessary We hold that is not 3(a) says. Section means what it Whether link or miscon the accused to the bad acts delegation legis- this is an unconstitutional members, generally engaged by gang duct authority separate question than lative is a 1) long provided so as the with evi “plain language” of current Article what the gang membership, the defendant’s 3(a) 37.07, Section means. 2) provided with of character and 3) reputation gang, required comments, only these I concur With if determine the defendant committed the judgment. Court’s 4) only bad acts or misconduct and asked to reputation consider or character of the ac CLINTON, Judge, concurring. 3(a) reading § cused. A fair of Article 37.07 404(c) implicates and Rule that the sentencer At issue this cause is whether evidence provided should be with all relevant evidence appellant belongs Crips, a street pun appropriate order to assess fair and gang, is admissible at the Accordingly, judgment ishment. murder, non-capital prosecution of his court of is affirmed. notwithstanding provisions of Article 37.07, V.A.C.C.P., 3(a), as it read at the McCORMICK, Presiding Judge, April time of his trial in of 1992. This is the concurring. version of 37.07 that construed in Article majority I concur in the result (Tex.Cr. Grunsfeld separately reaches this case. write to App.1992). It has since been amended. interpretation address Clinton’s read, In 1992 Article in rele- post-Grunsfeld 1993 amendments to Article part: vant 3(a), Section V.A.C.C.P. See Gruns (Tex.Cr.App. v. S.W.2d feld “Regardless plea and whether the 1992). punishment judge be assessed or jury, may, permitted by as This case application does not involve the Evidence, the Rules of be offered 37.07, of the 1993 amendments to Article any state and the defendant as to matter 3(a). However, Section Judge Clinton ad- sentencing, the court deems relevant to 37.07, 3(a), dresses current Article Section including prior criminal record concurring opinion. his Given this Court’s defendant, general reputation his and his 37.07, history misinterpreting of Article Sec- prior character. The term criminal record 3(a), Grunsfeld, tion see subsequent leg- a final conviction in a court of means rec- deleting permitted by islative action “... as ord, probated suspended or a or sentence ...,” clear, the Rules of Evidence it seems as trial, prior any that has occurred final Judge suggests, “plain Clinton that the lan- conviction material offense guage” of the 1993 amendments to Article charged.” 37.07, 3(a), grants Section trial courts almost “unfettered discretion” to In plurality “define what the of the Court reiter- Grunsfeld punishment phase plurality opinion issues are at the of a non- ated what had said its capital case-by-case rehearing Murphy trial” on a basis. This on position in (Tex.Cr.App.1989), was the State’s under about an earlier incar- Grunsfeld 37.07, 37.07, 3(a), pre-1993 § it amendments Article nation of Article viz: 3(a), rejected. exhaustively everything Section which this See does not define (State Grunsfeld, might at 523 claimed at the be admissible “anything non-capital prosecution, oper- admissible evidence include it does but relevant”). any Legis- the trial court deems ate to exclude evidence of the defen- unadjudicated specific lature then amended Article dant’s misconduct.1 Section acts, prior unadjudicated 1. The statute was amended in This bad not- 1993. expressly provided withstanding amendment for admission of Rules 404 and 405 of the Rules of judgment In the instant cause we are not confronted the normative of what question admissibility with evi- ought partic- him imposed upon to be for his appellant’s specific In- misconduct. However, Goode, ular crime. Professors presented ap- stead we are with evidence of that, inform us consis- Wellborn Sharlot pellant’s group engages affiliation with a 405(a) tent with Rule of the Rules of Crimi- general, proof conduct in no unlawful but Evidence, qua nal charac- character evidence specific perpetrated acts of misconduct objectionable punish- at ter evidence is by appellant any himself or other either phase non-capital ment of a trial unless it group. really member of his The issue is opinion reputation form of testi- takes the 3(a) First, 37.07, § two-fold. does Article Goode, Sharlot, mony. See Wellborn & here, prohibit admission of the evidence as Texas Practice: Texas Rules of Evidence: prohibits specific it we held mis- (2d 1993), § Civil and Criminal 405.2.2 ed. part conduct on the of the defendant in Mur- 405(a) applies 205. And we know Rule Second, phy and since the stat- Grunsfeld? admissibility to decisions of of character evi- exhaustive, ute is not is the evidence here punishment phase, dence at the if for no quite apart pro- express admissible from the language other reason than the in Article 3(a)? 37.07, § far I visions Article As as 3(a) effect, apparent viz: to that see, questions can these are the —the may, permitted by “evidence as the Rules questions granted discretionary review —we ,”4 Evidence, .. Acts be offered See in this cause.2 address 685, 8(b), Aug. Leg., p. 69th ch. eff. Overstreet, Judge writing plurality, for the 1985. Evidence of opines concerning appellant’s that “evidence evidence, proffered only as character there- gang membership is relevant because it re- fore, appear would to be inadmissible be- Op. lates to his character.”3 acceptable proving cause not an method of jury might no doubt that well believe that 37.07, § Article character under the fact that a convicted defendant is a mem- Rule 405. offers no other Overstreet bearing on of a street has some ber theory explain why gang-mem- character, evidence of and that that character trait (whatever is) bearing bership in turn has some is admissible. fact, 1993). plurality Criminal evidence. In the amendment also The merits of claim per phrase, permitted by reaches is not an extraneous offense issue se. "... deleted event, procedural because I consider the Legislature Rules of Evidence ...” Thus the has jurisprudentially insignificant, defunct, and default issue holding at rendered our in Grunsfeld prevails anyway, merits because the State on the purposes least for of trial of offense commit- attempt indepen- I will not to resolve that issue 1, 1993, September ted after 1993. See Acts opinion. dently separate in this 900, 5.10, Leg., pp. §§ & 73rd ch. 5.09 3762-64, 1, Sept. eff. dissenting plurality opinions 3. Both the and the agree to establish that the evidence sufficient plurality opinion ap- notes the court of

2.The Crips. was in fact a member of the peals' holding appellant procedurally de- agree. fully claim, argument faulted his and the State’s appellant's petition for discretion- this Court that permitted by phrase the Rules of Evi- 4. The "as dispo- ary review fails to address this alternative 37.07, 3(a) by § dence” was deleted from Article plurality conclusorily then declares sition. 1, legislative amendment. See n. ante. the 1993 appellant’s objections timely," "were Goode, deletion, noting Professors After Op. proceeds at and to the merits of case. opine that Wellborn and Sharlot nevertheless plurality forgets thus that we are a 456. The called, 404(c), Criminal Rule "witnesses under peremp- discretionary court. kind of review This testify prosecution or defense to at either the tory disposition an does not fulfill our issue punishment phase to the defendant's charac- develop clarify capacity function in testimony in the ter are restricted on direct to State, 357, Goode, al., v. the law. Cf. Ardía reputation opinion.” at or et form of (in (Tex.Cr.App.1992) discretionary 405.2.2, 205, 190, 2, our review p. p. n. law, capacity we are "the caretaker of Texas not may prove respectively. that even Thus it well applications.”). deletion, What the arbiter of individual character evidence at the after the 1993 punishment phase non-capital held was forfeited was an the court of of a trial will testimony. objection. Beasley opinion reputation Of v. or "extraneous offense” limited to Worth, today. question (Tex.App. need decide that Fort course we not S.W.2d part, borrowing problem defining For his lies in what from First Amend- “The jurisprudence, Maloney opines may or Judge particular ment ‘issues’ are that evidence “necessary” may prove. that it is to show more than the not be ‘relevant’ We mere fact that was affiliated with before that material issue ‘[t]he remarked Crips. Op. is, at 465. It phase obviously, must also be during punishment that he to further demonstrated “intended punishment assess[.]’ what Hoffert Crips, indeed, aims” of the (Tex.Cr.App. — “engaged gang-related illegal 1981). he activi- obvious, it is While that is indeed ty” evidence that he was affiliated especially helpful purposes not of de —before may with them be deemed “relevant” to his ciding relevance. sentencing. Op. respectively. at 463 & consequence’ [quoting facts ‘of Tex. Although glancing he made reference to the R.Cr.Evid., guilt phase 401] Rule trial, appellant First Amendment at does not narrowly readily trial are drawn peti- raise First Amendment concerns extrapolated penal provisions discretionary proof tion for review. Whether statutory justifications. may [Evidence] appellant’s gang affiliation violates the fact, proof be offered as ultimate First Amendment is therefore not an issue intent, identity culpable such as or it per is before us se in this cause. may evidentiary be offered to establish an “necessary” Whether it is for the State to fact, motive, an ulti- such as from which appellant “engaged establish related mate fact be inferred. In either case activity” before it can be said that his we know what the material issues are be- membership depends, is “relevant” it seems Legislature supplied them. cause the has me, say on what it means to that evidence point by Thus we have fixed which to is “relevant” of a navigate questions guilt of relevance at the non-capital trial. Maloney does not phase of trial. The same is not true of the question. address this There, punishment phase. aside from cer- Judge Maloney suggests further that ab- exceptions, tain ‘factfinder’ does not sent some evidence of actual in- determine facts. [discrete] the existence activities, gang-related volvement in Deciding punishment what to assess is a “unfairly of his preju- would be process, intrinsically normative fact- Op. explains dicial.” at 468. But until he pun- bound. Because the material issue at why he gang-membership thinks is relevant indistinct, relevancy prof- ishment is so all, one cannot tell how he thinks lack of fered evidence cannot be determined appellant engaged gang-re- evidence that processes. deductive To extend the nauti- illegal activity adversely lated affects the metaphor, given cal a rudder have been probative value of evidence of steer, polestar by. but no to steer compared tendency persuade to its reality, what is ‘relevant’ to determin- illegiti- to decide on some ing proper punishment question is more a Tex.R.Cr.Evid., mate basis. See Rule 403. policy logic. creating In than short, theory until he articulates a to separate punishment proceeding in explain why gang-membership is relevant at Legislature clearly to remove intended punishment, one cannot tell how Malo- unitary inherent in a trial. the blinders ney appellant actually knows evidence 37.07, Unfortunately, of Article outside gang-related illegal activity in is 3(a), given guid- § supra, it has no clear essential, complete to inference either in- ance as to what considerations should (whatever is), it or to render that inference jury’s punishment form the decision. probative prejudicial. more than it determining The truth is that is “rel- at 62-63. For these reasons what part unhelpful in evant” at the of trial seems to me for the most even non-capital part prac- speak in vet non case is for the most to terms the “relevance” phase tically impossible. punishment As in some of at the of a we described evidence plurality opinion Murphy: non-capital in in detail our trial. other “relevant” to some shortly ably “deemed” it compound problem, before

To rehearing the court of opinion purpose, undisclosed and neither handed down our empowered Article to tell Murphy, Legislature amended nor this Court is 3(a) does, provide, tempta- as it I say to now to so. resist the him he erred punishment tion, be offered at the only interpret evidence current because to but any matter phase non-capital 3(a) trial “as to court grant to the trial Article sentencing ...” the court deems relevant to define what such “unfettered discretion” Thus, Legislature to have taken seems punishment phase of a issues are at the ‘appropriate’ ultimate decision of what is “the be, view, my put non-capital trial would assessing punish- for a to consider del- imprimatur upon an unconstitutional our of this Court and ment out of the hands authority, legislative in violation egation of placed squarely in the hands of the II, § 1 of the Texas Constitution. Article State, supra, at 542 court.” (Clinton, Grunsfeld, supra at 543-44 & 547 Grunsfeld (Clinton, J., concurring). As I noted at J., liberty concurring). to do are not We greater length Grunsfeld: that. “By providing that evidence as whatever con- this unconstitutional In order to avoid trial court deems relevant ‘matter’ the “any matter phrase, struction phase of punishment is admissible at that sug- I sentencing,” deems relevant court light Legislature appears, in trial the interpret it to that we gested Grunsfeld rehearing, assigned to Murphy on to have very limited trial court grant judge significant task of the trial the more that we continue proposed discretion. case, apparently by case what deciding, 37.07, § had on Article as we construe appropriate are to inform ‘matters’ Murphy, to authorize the rehearing in viz: proper punish- as to determination just more than trial court to admit range. prescribed Out- ment within prior criminal in the form of of character record,’ rep- ‘general criminal ‘prior side of (and now, record, opinion reputation, and ‘character,’ however, Leg- utation’ amendment, any specific unad- since the any particu- supplied has not islature still prove judicated can misconduct State will, reference, you any ‘polestar,’ if lar doubt the defendant beyond a reasonable the trial court can make the essen- which committed). construe it also to We should appar- It ‘relevancy’ tial determination. to admit evi- “give the trial court discretion ently trial court in its unfettered left to the prove those having any tendency to rele- to decide what ‘matter is discretion traditionally recognized cat- matters that are Moreover, the trial court vant.’ because of the offense egories of ‘circumstances deciding legislatively assigned the task of ” at 547. offender[.]’ ‘relevancy,’ may its decision criteria for categories” “traditionally recognized appellate essentially unreviewable an These Murphy. After all, if trial court’s discre- from the discussion court. After derive per determining saying what ‘matter is rele- “relevance” pointing tion includes out is, non-capital vant,’ appellate phase court relevance what se at the say abused its see ante at 455- hardly problematical, can the trial court trial is best finding particular piece discretion we continued: ‘relevant.’” nevertheless, know, certain doWe Id., widely regarded at 547. information has been punishment. to assessment ‘relevant’ hold, accordingly, that tempting to It * n * ... thought penological Modern appellant is a member that, along circumstances with the holds admissible, as not because it is “relevant” is offense, ‘highly not essen relevant —if evidence,5 plurality holds as the character appropriate of an ... selection judge presum- tial —to today, but because the admissible, the trial undoubtedly prove lant's to charac- is "relevant" 5. It "relevant” to “deem” it court would have to the Rules of Criminal ter. But under Rule 405 of tendency Evidence, to establish purpose other than its prove some to character. it is not admissible appel- his character. hold evidence of ante at 454-455. To See at 63. It is process. normative 777 S.W.2d possession is the of the fullest sentence finding the existence vel non concerning not a matter of possible the defen information facts, process is instead a of discrete but dant’s life and characteristics.’ Williams context, just In this all York, 241, 247, evaluating deserts. v. New 69 S.Ct. U.S. (1949). really say religious about affiliation 1083, 1337, we can 1079, 93 L.Ed. that, something say to the extent it seems in the These factors are not ‘relevant’ defendant, intuitively sur- positive about a we sense that tend to make more or less jurors would want to mise that at least some probable identifiable issue of ulti some making it in that evaluation. know about punishment phase. Call mate fact at the say “appropriate” submit it Thus we it is ing and the circumstances of the offense punishment phase of a non- to the at the really ‘relevant’ is no more than offender willing If we are to credit capital trial. say appropri we deem that information intuition, strange give it would be not ate for the factfinder to consider in exer jurors equal credit to the intuition that some cise of its unfettered discretion to assess might appellant’s to know about affilia- want punishment pre within the whatever Crips, inasmuch as it seems to tion with the range policy gap it sees fit. In the scribed say something negative (Surely about him. Legislature, left this Court has held say something nega- the fact that it seems to of ‘the circumstances of the of evidence something positive than cannot tive rather fense itself or ... the defendant himself to distinction!) provide a valid basis for To this punishment phase. be admissible at the undoubtedly appeals was extent the court of State, (Tex. 716, Stiehl v. 685 S.W.2d justified concluding in mem- Cr.App.1979).” “cir- bership Crips in the was an admissible 777 S.W.2d at 63. See also Miller-El v. the con- cumstance of the offender” within State, (Tex.Cr.App. 782 S.W.2d 895-96 templation Murphy. of our discussion 1990); Stavinoha v. 78-79 Appellant argues that if even ( Tex.Cr.App.1991). the bare fact of his One “circumstance of the offender” that we admissible, gang’s evidence of the activ were Murphy “appropriate” identified for a opinion our ities is barred Gmnsfeld. sentencing jury apart to consider from its simply In In this mistaken. “relevance” as character evidence is “reli- held, we as we had earlier held Gmnsfeld Id., this, gious Noting affiliation.” at 64. Murphy, specific misconduct that evidence the court of cause instant part was inadmissible opined: 37.07, 3(a), part § not under Article because “It seems reasonable that if prior criminal record of the defendant.” “the [appellant’s] religious ap- affiliation is an 524-25; sfeld, supra, Mur Grun propriate determining consideration in his phy, supra, But Article at 63-64. punishment, then his affiliation with a 3(a) admissibility speak to the does to crime dedicated and violence is also general of others evidence of the misconduct appropriate consideration. therefore We might the defendant associate. with whom hold that the trial court did not err in prohibit certainly expressly It does not ad allowing [appellant’s] affiliation Arti mission of that evidence. And because Crips gang with the or evidence of the provi not an exhaustive cle gang’s dedication to crime and violence.” sion, question becomes whether evidence Beasley whom the at 810-11 of the misconduct of those with 1993). Worth, “appropriate” is an con (Tex.App defendant associates . —Fort assessing punish sideration for the holding. It is hard to assail this It is hard non-capital ment in a case.6 assail, indisputably not because it is cor- rect, Judge Maloney by any dissent concludes but because we cannot test appeals’ religious purely process. As said in Mur- that at best the court of rational “analogy” admit of evidence phy, deciding impose is a affiliation would what Amendment issue in this cause. It is well to remember has raised no First character, appellant’s membership in admissible as evidence of char- of the bare is fact 3(a) se, Crips, particulars per the but not of the the under Article acter gang’s Op. at 466-467. With this activities. According- Rule 405. See ante 458-459. at agree. I cannot That defendants often times ly, appellant would also have been entitled with, present say, evidence of affiliation the upon request limiting to a instruction that Church, Baptist presenting without also evi jury appellant’s not must consider mem- purpose, function dence of the and activities bership Crips any in the as evidence of his denomination, probably just of that a testa per character se. As to what inference can that, general parameters fact ment be drawn from the “circumstance” of his least, commonly those are known and do gang membership per his character besides require evidentiary not elaboration. If se, am, quite frankly, I I unsure. But cannot known, however, commonly surely a were not say categorically jury that a could not find defendant who wished to establish his affilia anything about this “circumstance of the of- Baptist tion with the Church would be al fender” that was useful to its evaluation of prove background lowed to these facts —in just apart says it punishment from what not, deed, if he did evidence that he was a appellant’s say I about character. Until can Baptist might later be struck because the that, ap- I am to fault unable the court proponent did not show it to have mate peals’ conclusion that the evidence is admissi- vague significance rial even to the issue of holding Murphy. ble under our Murphy, “what su assess[.]” 3(a) short, 37.07, § not Article does 62, citing supra, pra, Hoffert, at 145. See necessarily prohibit operate to admission ei- (Tex. Fuller v. 198-99 appellant’s ther of the fact of affiliation with Tex.R.Cr.Evid., 104(b). Cr.App.1992); Rule Crips, background or of evidence inform- purpose, function activities ing jury purpose, function and Crips widely, universally, but not known. general group, activities of that without every juror typically Not will know what it may which the of his affiliation means to be a member of a street altogether meaningless. Only if the State Crip “circumstance” expressly proffers solely this evidence whatsoever, proves nothing “appro whether per character evidence se does Article not, juror priate” Murphy or to a who under 3(a), 405, prohibit in tandem with Rule its thing does not know the first about what the To the extent admission. State Crips are. offender,” it as a “circumstance of the offer I cannot conclude that For these reasons punishment in bearing proper some re- court of erred to hold that evi- se, spect apart per character his appellant’s dence of and of 3(a) admitted, 37.07, § should be Article not- gang’s activities was admissible withstanding. this, Having I instant cause. said hasten to First, agree I add a few caveats. with proffer limit its of evi- The State did not Maloney permit- that the would not be tendency prove it had to dence whatever appellant’s ted to infer from affiliation with per appel- did appellant’s character se. Nor that he himself has committed request limiting requiring instruction lant misconduct, specific for that would be acts of not be considered for that the evidence proposition al- to admit evidence for as, view, my have been purpose, he would 37.07, § lowed under Article as of the join judgment Accordingly, I entitled to. trial, at least as this Court inter- time of affirming judgment of the Court preted it in Had re- However, join I cannot appeals. Grunsfeld. court of quested limiting punish- instruction plurality opinion. charge requiring to eschew ment inference, my he would have any such view J., MEYERS, joins. been entitled to it. MANSFIELD, Judge, concurring. Second, plurality, I do not be- unlike the join judgment of the for the say can that evidence of lieve we opinion in affiliation, my concurring although to his reasons stated relevant

463 (Tex. Membership State, I. Evidence v. 946 Sufficient Anderson day. Crim.App.), decided this Lemon, 922, 723 F.2d States v. United (D.C.Cir.1983), the District of Columbia MALONEY, Judge, dissenting. three-part test Circuit Court outlined a sufficiency membership evi- plurality holds the evidence of determine punishment, not- admissible at evi- dence. The court held that necessary link the ing that “it is not punishment may not be admitted gener- accused to the bad acts or misconduct to establish unless the evidence sufficient ally engaged members....” group that the defendant is a member of Beasley Op. (Tex.Crim.App. at 457 issue, group’s illegal, aims are and the 1995). 28, disagree. I The court of June illegal to further those defendant intended finding not err in that the evi- did sentencing aims.1 That court held that the beyond a dence was sufficient to establish information the de- judge’s reliance on about reasonable doubt that was a mem- Black alleged association with the fendant’s Crips gang ber of the improper absent Hebrews illegal gang was involved activities. Nev- illegal activities of linking defendant to the ertheless, the evidence is insufficient to show group. The court cautioned that illegal intended to further the “if Amendment would be violated de- First gang. Accordingly, activities illegal simply in- fendant’s intent could membership testimony is of little relevance ferred from evidence of his association with sentencing unfairly prejudicial and is group.” Id. at 940. The members of the appellant. “[Tjhere explained, must be court further sufficiently indicates its intention to rehable evidence defen- When State gang membership during offer within dant’s connection punishment, carefully a trial court should the Black Hebrews to insure that he is propriety evaluate the of its admission. being given a sentence for mere harsher suggest following outline: group_” (empha- association with the added). sis

(1) Is the evidence of defendant’s member- ship sufficient? Court, in Fuller v. This (2) sentencing” Is it “relevant under 191, (Tex.Crim.App.1992), cert. de 197-98 Tex.Code Crim.Proc.Ann. art. —nied, —, 2418, 124 U.S. 113 S.Ct. 3(a)? (1993), applied the test articulat L.Ed.2d 640 (3) prison gang ed in Lemon to evidence of Is it admissible under the Rules of that, membership. because or Evidence? We reasoned 1. A street fiable common associate ties.” Tex.S.B. Crime during ing At the federal means an or association (a) following tinuing series of offenses described in sub- section offenses described in subsection commission of 1 or more of the criminal (B) (A) proposed Definitions.... gang” leadership chapter the 74th that has as 1 of its the members of identifying sign in the commission of criminal activi- (c); and as "three or more ongoing within the definition: of the Texas Penal Code offered amendment level, Legislature of 5 or who group, recent continuously gang-related "[C]riminal past which Leg., or more primary symbol defines to the club, legislation R.S. persons having a persons— years, engage, organization, street purposes offenses uses or (1995). a "criminal (c); Organized in a con- an identi- regularly enhanc- or have gang” Violent Crime of (c), (1994). section (c) substance foreign commerce. scribed has as alty (1) (C)the er; (2) (3) 1994 U.S.C.C.A.N. Offenses. The offenses physical a Federal a Federal Pub.L. No. ^[*] are conspiracy not less than 5 activities of which affect interstate Control and Law Enforcement element ... n paragraph force felony for which the maximum felony involving 103-322, against ^[*] to commit the use or (108 Stat.) crime of violence (1) ^[*] years; Ch. 26 described in this person (2). an offense de- ^[*] attempted a controlled of anoth- ^[*] pen- use Act or & violence, cannon ganizations illegal protect testimony ques- in with aims are not the of Constitution, ed “neither is member probability tion did not increase the that ship with intent to those aims.” in he would be violent the future. further Fuller, added). (emphasis 829 S.W.2d at 196 added). (emphasis that We also observed We held the evidence inad “proof organization’s practices of an violent “woefully missible because it was insuffi ultimately sentencing relevant to the of a “legally inadequate Ap cient” and to connect specific proof individual without of that indi- any pellant meaningful with the in organization.” in vidual’s Id. at 198. The way.” evidence offered Id. at 196 n. Dawson Dela- (discussing prison to show Fuller’s connection with a ware, 159, 1093, report was the of an inmate “whose U.S. S.Ct. rambling testimony (1992)). essence, inarticulate and is almost the Fuller In L.Ed.2d 309 best, Id. at 197. impossible decipher.” At to that not meet Court held the evidence did testimony suggested the inmate’s test; is, of the Lemon prong the first defendant once mentioned the in con was insufficient to establish might expected “that versation and he prison that Fuller was a member of the protection prison.” furnish him while Id. at 198. Id. at 198. We accordingly held: At issue in the instant case is the sufficien- organiza- in the abstract of that [P]roof cy regarding prong of evidence the third ultimately tion’s beliefs and activities was test, Lemon the intent to further any irrelevant issue illegal group.2 aims of the Because direct phase of its trial. Without other evidence probably a defendant’s intent finding Ap- rational sufficient for unavailable, pellant actually sufficiently must be reli- was a member such “there organization or that he subscribed to its able evidence of the defendant’s connection concurring opinion, specific proof of that individu- In his Clinton takes individual without Fuller, organization.” “borrowing us to task for from First Amendment al's Thus, appel- jurisprudence” "appellant because does not raise 829 S.W.2d at 196 n. 2. because petition arguments First Amendment concerns in his for lant's in the instant case discuss the (Clin- terms, Beasley, Op. discretionary “relevancy” ignore review.” at 459 we issue in cannot ton, J., Fuller, Dawson, Lemon, concurring). Judge directly Clinton’s criticism is which are misplaced point recognize for three reasons. on the interconnectedness of relevancy and the First Amendment in this con- First, strictly the Lemon test is not a First text. test; Amendment Lemon addresses both First Second, opinion heart our addresses the relevancy Amendment and concerns because the upon granted: ground which review inextricably are in this context. For two linked ruling appeals "Whether the court of erred Dawson, example, Supreme Court stated introduce, proper for that is for the State to [sic] the issue before the court: purposes punishment, conduct evidence of bad presented question whether in this case is members, generally engaged by gang without prohibit the First and Fourteenth Amendments having to such to link the defendant conduct.” capital sentencing pro- the introduction in a issue, Again, to resolve this cannot be faulted ceeding fact that the defendant was a authority directly point. turning for that is Aryan organization member of an called the Lemon, Third, though not cite the court it does Brotherhood, where the evidence has no rele- parallels appeals' opinion below Lemon being pro- decided in the vance to the issues appeals analysis. held that The court of ceeding. beyond sufficient to establish Dawson, evidence was 503 U.S. at 112 S.Ct. at 1095 doubt that was a member added). reasonable Supreme (emphasis ultimate- Crips, prong test. first of the Lemon ly held: Beasley, at 811. In the court of rights Amendment were violat- Dawson's First challenge appeals, appellant the trial did not Aryan the admission of the Brotherhood ed case, finding that members of the en- court’s in this because the evidence activities, prong. illegal gaged in the second proved nothing abstract more than Dawson's However, appel- court of addressed cannot find that evidence [W]e beliefs.... that there was no evidence that lant's contention properly admitted as relevant character illegal participated activities he evidence. Dawson, Crips, prong the third at 1098 attributed to the 503 U.S. at 112 S.Ct. Fuller, added). improper, Accordingly, it is not (emphasis Court held that Lemon test. Id. court, opinion reviewing of the lower proof organization's practices violent of an analysis. sentencing in our ultimately of a include Lemon “not relevant to the Jeffrey Mayer, Individ- indistinguishable. J. activity” group “to insure within the Criminali- Responsibility and the being given a harsher sentence ual Moral he is not group-” Gangs, with the 28 Wake for mere association Youth zation of Forest words, Lemon, (1993). Mayer at 940. In other 723 F.2d contends L.Rev. illegal activities been, connection to the are, groups defendant’s always have “[g]angs group may established of a mo- many of the same youths formed further, partic- intent the defendant’s always organized youths tives in, illegal activi- ipation approval or of those identity -friendship and social themselves — in particularly important This is ties. crimi- delinquent of or pursuit as well as gang context since street added); (emphasis Id. at 949 nal activities.” monolithic, indicates and the literature is not Jankowski, Islands in see also Martin S. gang of generally recognized levels three Society American Urban Gangs and Street: Burrell, Gang membership. E.g., Susan L. (1991) (stating many individuals 42-43 Defense, 30 Issues Criminal Evidence: “primary they are the join gangs because (1990) 739, n. 2 & n. 45 L.Rev. SANTA CLARA neighborhood). of social institution” Spergel, Gangs: Problem (citing I. Youth sym- “[cjlothing and outward Consequently, Response: A Review the Literature and of are often unrelat- gang of consciousness bols (1989); Gang Atty. Youth Task 64-65 Gen. purpose.” Mayer, 28 Wake a criminal ed to Force, Dept, of of the State of Cali- Justice 966.3 L.Rev. Forest fornia, Gang Report on Youth Violence illegal activity en- (June 1981)). Determining whether top At the level are California by “gang-related” is members, gaged in a defendant “those few “hardcore” who are The United totality gang problems. poses and thrive on the additional who need recog- Sentencing has activity.” at n. 45. The hardcore mem- Commission Id. States gang, moti- leadership difficulty determining bers constitute nized largely gang’s and level of violence is gangs. See Unit- purpose or of street vation by ability Commission, their to orchestrate the Special determined Sentencing ed States At the mid-level of mem- others into action. Crime Con- Report Congress: The Violent “associates,” bership are the who “associate at 45 Act trol and Law 199k Enforcement recognition.” group with the for status and 1995) (draft). Report discusses The (April may gang signature The associates wear Id. gang that a mem- propriety presuming participate in clothing or the social functions activity engages in an ber who group. of member- The lowest level membership. This by gang motivated “fringe ship “peripherals” includes the or possibility that an precludes the presumption tangentially related to the members” who are gang may a who is affiliated with individual ‘in out’ on peripherals “move behalf. illegal acts on his own commit activity or activi- the basis of interest drug points offenses Report out in mem- Id. Given these variations ties.” purposes of may “primary” be crimes violent proof that a bership, type typical activities of gang a or necessary. activity gang-related illegal than activities gangs attract rather person It is also gang itself. sponsored fully understand street It is difficult gang activities occur as a possible that these and criminal gangs the social ties because purposes, such as “true” may to fulfill its organizations strives purposes within the (emphasis Mayer, L.Rev. at 961 staying gang 28 Wake Forest Joining gang a is not or added). ac- Accordingly, imputing criminal voluntary always act the individual member: may gang an individual member tivities behavior, association such as Certain social not be warranted: gang knowledge with members and matter, teenager may a local practical As a Young signs, may also be a matter survival. associating with difficult time not have a peace with local have to make males if relevant Close association members. school, work, merely gangs go purpose walk from the a criminal one can infer association, neighborhood. In other circum- demonstrate around the stances, but social realities unwarranted. blend with is often markers of that this inference young Id. at 966. minorities. the traits status, territoriality, controlling exclusive, “including” human be- is not and other evi havior. long dence is admissible so as it is deemed sentencing. relevant to See Code Construc Further, prosecutors nationwide define Act, 311.005(13)(defin tion Tex.Gov’t Code “gang-related” divergent ways. crime ing “including” enlargement as a term of study conducted the National Institute enumeration); Justice, not of limitation or exclusive approximately forty-four percent (Tex. Murphy prosecutors jurisdictions of 368 large agreed “any Crim.App.1988) (opinion reh’g), with the supersed definition crime com- member,” by gang equiva- mitted (holding while an ed statute that Article percentage opted lent for the more narrow § setting “is not exhaustive in out evi “only by gang definition a crime committed dence admissible at the gang activity.” member that is related to offender.”). show circumstances of National Institute of Justice of the De- U.S. prohibiting While evidence of extraneous Justice, partment of Research in at 3 unadjudicated offenses,5 Brief this Court has held (Feb.1995). uniformity lack This in defin- types admissible various of evidence outside ing “gang-related” activity compels that trial record, “prior general the ambit of criminal judges discern whether the evidence that a character,” reputation, including family illegal activity defendant indicates affiliation, education, background, religious by that his conduct was motivated or related employment history. Murphy, 777 gang membership, comporting to his thus 61; State, at S.W.2d Allaben v. 418 S.W.2d with the “gang-related.” latter definition of 517, (Tex.Crim.App.1967), superseded by 519 definition, “any The broader crime commit- statute, Murphy, 777 S.W.2d 44. This evi member,” by gang ted a satisfy does not usually dence is admitted under the rubric of Fuller, applied by Lemon test this Court “circumstances of the or “circum offense” 829 S.W.2d at 197-98. E.g., stances the offender.” Miller-El v. State, 892, (Tex.Crim.App. 782 S.W.2d 895-97 Sentencing II. Relevant 1990); 63; Murphy, 777 at S.W.2d Stiehl v. The court of in the instant case State, 716, (Tex.Crim.App.1979), 718 held that evidence that is a mem- denied, 1114, rt. 449 U.S. 101 S.Ct. ce gang ber of a dedicated to violence and other (1981).6 926, 66 L.Ed.2d 843 “Circumstances activity criminal is admissible at of the offense” and “circumstances of the 3(a) 37.07, § under Article of the Texas Code offender” are admissible not because Procedure, of Criminal which at the time of character; address some other than issue trial, provided part: in relevant rather, they inform the about the defen [Ejvidenee may, permitted by the Rules person. dant as a This information is rele Evidence, be offered the state and assessing vant in that it assists the any the defendant as to matter the court punishment. Murphy, See 777 S.W.2d at 67. sentencing, including deems relevant defendant, prior criminal record of the his sentencing capital Unlike context general reputation and his character.4 juries special where are instructed to answer State, negative, issues in the affirmative or the As we noted in Grunsfeld 37.071, 521, art. non- Tex.Code Crim.Proe.Ann. (Tex.Crim.App.1992), super S.W.2d statute, juries following capital punish- seded the list the word are instructed to “affix evidence, applica- 4. This tried that "relevant to the case was before Art. fense E.g., was amended in 1993 to allow evidence of extra- probation.” tion for Davis v. Allaben, neous offenses or bad acts that are shown be- (Tex.Crim.App.1972); S.W.2d yond a reasonable doubt to have been committed (admitting de- 418 S.W.2d at 519 evidence that Grunsfeld, the defendant. 843 S.W.2d at 526. sought psychiatric fendant had treatment for his case, although problems). sexual In the instant supra 5. See note 4. requested probation, had the State appeal argue at does not that the evidence requests probation, 6. Where the defendant application probation. issue is relevant to his evidence, permitted range al- broader evidence, lowing any including unadjudicated of- Aryan Thus, Brotherhood “rele- indicate that any arguably matter is ment.”7 acts, jury in or if it assists sentencing unlawful violent vant” committed punishment.8 How- affixing appropriate acts, held that such had endorsed ever, held this Court has never any aggra- evidence was not relevant to group purposes or activities of vating The Court concluded circumstance. to the defendant is some- absent connection rights were Dawson’s First Amendment sentencing. how “relevant” to nothing proved because the evidence violated than his beliefs. more abstract Gang Capital

A. Evidence 112 S.Ct. Sentencing Murder prison that evidence of This Court has held Dawson, Supreme Court’s decision in capital murder gang membership under 159, 112 1093, capital murder 503 U.S. S.Ct. statute, sentencing Crim.Proc.Ann. Tex.Code prosecution sought to use case where process violate art. does not due statutory aggrava establish presented evidence that where State sentencing hearing, ting circumstances at the criminal involved insight into how mem provides some directly member- bership might “relevant” be deemed flowed capital noncapital sentencing con ship. Hernandez v. At issue in Dawson was text. add- (Tex.Crim.App.1991) (emphasis 816-17 belonged prison gang the defendant ed). inmate An testified Hernandez stipulation gang. the a two sentence about Syndicate” “that of the “Texas and a member stipulation explained: The had to be cold-blooded [he] to be a member Aryan a white “The Brotherhood refers to someone; killer; agreed to kill [he] that had began prison gang that in the 1960’s racist agreed pris- in ‘to deal’ heroin [he] and response gangs in in California other at 816. on.” Id. calling Separate gangs racial minorities. in from instant case differs Hernandez The Aryan now themselves the Brotherhood First, important respects. Hernandez two many prisons including exist in Dela- state 37.071, not 37.07 under Article was sentenced ware.” hand. was at in the case at which issue 162,112 (quoting trial Id. at S.Ct. at 1096 the based, Second, holding in our Hernandez record). Supreme court The Court held part, in at least on evidence that Hernandez pro- the First Fourteenth Amendments in flowed involved criminal “that gang-related the introduction of evi- hibit membership.” his In con- directly bearing dence where the no “[has] trast, granted in the ground for review the being on the issue tried.” poses query: following did case the stipulation at 1099. Because the instant S.Ct. case, pun- why explain is relevant at instant as 7. In the the was instructed J., (Clinton, Beasley, Op. at 459 follows: ishment....” concurring). I the same duty punish- note that reach your It now becomes affix the against Judge as to this evi- to be the as Clinton how ment assessed Defendant.... conclusion sentencing” fixing are instructed that in the Defen- You could be deemed "relevant to dence may you dant’s ... take into con- by We both conclude that the court. all facts shown the evidence sideration the be under admitted you the full this case admitted before in trial of or “cir- of “circumstances of offense” rubric you and the law as submitted to in this Compare supra of the offender.” cumstances charge.... J., (Clinton, Beasley, Op. part at 460-461 II with full, punishment] fair and [You shall affix concurring). We observe “circumstances opinion of free exercise of the the individual offender" and "circumstances of the the offense” jurors, under evidence admitted before admissible because inform are you.... p. person. Supra 466. as a about the defendant judges facts You are exclusive of the appel- Accordingly, appropriate it is consider witnesses, proved, credibility probative this evi- claim value of lant's that the weight given testimony.... to the is, dence, may tell us about what outweighed preju- person, its concurring opinion, criti- Clinton In part theory III. failing effect. See to articulate “a dicial cizes us for infra Appeals [Griego] the Court of erred in allegiance Whether A: have an ruling proper goal, that is they engage [sic] for the State to for common in introduce, purposes punishment, and criminal activity. evi- violent generally engaged bad conduct members, by gang having without to link violence, [Griego] A: Their crimi- cause is the defendant to such conduct? drug trafficking, nal activities such as robberies, witness intimidation. Religious Analogy B. Affiliation purposes, For example illustrative anal- ogous testimony is as follows: reaching In its conclusion evi Q: purpose Baptist What dence was admissible under Article Church? 3(a), appeals the court of that if reasoned religious appro evidence of is an Baptist affiliation A: Church is dedicated to the priate determining punish consideration in worship per- of Jesus Christ and ment, gang membership then forming charitable acts in the commu- likewise Beasley, nity. admissible. religious affiliation has ment); ing harmless trial court’s erroneous exclusion 524 n. S.W.2d ated beliefs, (Tex.Crim.App.1969) (holding harmless trial would make instant case concerns ny only. testimony at issue here concerned reh’g); have not held related to membership analogy. 810-11 group. 7; Murphy, However, agree purposes, Miller v. 338, important see also (Tex.App. with that 340 beliefs, See of goes beyond membership: The court of defendant’s State, (Tex.Crim.App.1969) and activities cases admissible evidence of the Grunsfeld, 777 admissible, Coleman purposes, — Fort distinction analogy S.W.2d where S.W.2d 442 or affiliation Worth steady 843 S.W.2d at if the testimo at 64 we have v. and activities the evidence of issue in drawing State, the affili 1993). 340, failed to (opinion employ (hold only; held 442 349 It vant may be admitted as relevant the less there is little ing process. types ship testimony of membership only. That defendant’s sufficient evidence dant to the ny poses relevancy problems Absent evidence that a defendant court, testimony regarding membership ing for the homeless. works, in an ens, administering Members of the clear of activities n organization how it such as specific ^[*] good While the to character, particularly when of no evidence the amounts to evidence of a of works n assisting activities mentioned. the group’s Church has defendant’s to the testimony listing group may above, ^[*] been linking to the engage character, sick, presented this n soup present member- and car- sentenc- testimo- be rele- is, defen- kitch- n good once it is the to testimony court’s erroneous exclusion as to III. Rules of Evidence membership

defendant’s in church and at at tendance church services “most of the If trial court the concludes that the State time.”). has sufficient introduced evidence mem- testimony bership proposed that the and During the of the in- sentencing” “relevant within Article case, following the stant State elicited the 3(a), it must consider whether Rules of the testimony Griego, po- from Officer veteran permit testimony.9 Tex.Code Evidence such lice officer from California testified who that 3(a); art. Hernan- Crim.Proc.Ann. he had worked with for the fifteen (“[T]he dez, at 816-17 discretion years: determining supersede in evidence does not Q: purpose Crip What regarding [State] is the the rules manner the

gangs? proof.”). agree holding objection appeals' 9. with the court that waived his that the was im- timely appellant’s object permissible failure to in manner extraneous offense evidence.

469 sense, gang In a the Dawson, unfairly prejudicial. in his dissent U.S. J., jury (Thomas, dissenting), membership testimony encourages the at 1105 112 S.Ct. is that ‘real that the State is unable Thomas observed “the to infer which Justice membership admitting gang in evi prove. sue’ ‘probative value whether its [is] plurality’s assertion that evidence The preju outweighed by danger of unfair gang is ad- gang activities ” v. Langley dice.’ also See required “not long so as missible 1987) (con (Tex.App. Tyler S.W.2d — committed the if the defendant to determine testimony regarding defen cluding that “only asked acts or misconduct” bad by the gang membership “when tested dant’s reputation or of the ac- character consider against inflamma appropriate standard cused,” Beasley, op. persuasive. is not admissible). thereof,” He tory aspects is instructed Regardless of whether it disagreed majority’s with assertion finding, jury may rea- make a factual membership testimony and the two-sen participated in sonably infer a defendant ab stipulation10 only proved Dawson’s tence gang. to the illegal activities attributed Rather, Thomas stract beliefs. stated “implied more much than concurring opinion in In his Anderson creed; it gang’s racist he shared the abstract (Tex.Crim.App.1995), engaged prison Dawson

indicated that had potential acknowledges the Mansfield activities, and that he had character proper- prejudice to defendants of unfair person engages in these who activities.” give limiting in- ly suggests that courts Dawson, U.S. at 112 S.Ct. at 1101 admonishing that the de- struction J., (Thomas, dissenting). must not fendant’s making responsible him neglects be construed as plurality recognize allegedly or bad acts committed prejudicial jurors may inference draw crimes testimony, particular- ly appel- there is evidence that where little illegal engaged

lant activities motivated Application to Instant Case IV. gang membership. or related to Jurors case, the called two In the instant State (1) may be inclined to reason follows: member- witnesses establish (2) gang; Defendant was member of Crips: Griego, Officer who knew ship specific types illegal con- engaged during the time lived duct; (3) Therefore, Barstow, California, Thompson, and Eric who precisely conduct. This is time of the with the deceased at the by point made Thomas in Dawson: Justice phase, During Offi- offense. reasonably my judgment, jury could [I]n ways Griego that one of cer testified in a conclude Dawson’s known is Crips members make themselves engaged prison gang that had in some he by garb or dress: their distinctive pris- sort of forbidden activities while stipulation was [T]he on.... relevant garb, Crips known to wear blue are explained Dawson’s character because shirts, shoes, or tennis pants as blue such Aryan prison that the Brotherhood was a shoelaces, logos on caps with Raider’s gang and that Dawson was a member. them, logo, or jackets black with Raider’s evidence, submit, supports infer- That shirts, with other dark blue combination prison, Dawson ence that while way Another is the non-verbal garb_ in the mentioned kind unlawful communications, graffiti in their such as by the Court. they reside.... neighborhood where historically Dawson, Crips have been identi- 1100- [T]he U.S. at 112 S.Ct. at blue, inference, opposed to the (Thomas, J., color dissenting). This fied with the red, gang, opposing linking a which absent sufficient evidence color Pirus, just identify It’s with. gang, Bloods to the activities” “forbidden p. 10. See supra identifying

means of A: [Thompson] young themselves with their One man was particular shirts, In wearing addition to cap, a black Raider’s a blue pants, they carry can also what is called a pock- bandanna out the back of his rag or a signifying handkerchief young same et. The other man was wear- thing, a jacket blue handkerchief. ing a L.A. Laker’s with a blue hanging bandanna out also of his testifying After he knew for a shirt_ pocket, button-up Griego years, responded number of to the questions: State’s Q: you any significance Did attach [State] Q: the blue bandanna and you the L.A. [State] Have ever seen the Defen- jackets? cap dant, Raider’s Beasley, wearing any Roosevelt gang clothing you [Objection Counsel; by Defense over- jury? outlined for the by court] ruled trial A: [Griego] Yes.

Q: you [State] Have ever seen Roosevelt [Thompson] A: The blue bandanna has Beasley out hanging with other known significance pertaining activi- Crip gang members? ty- [Objection Counsel; by Defense sus- Yes, A: [Griego] I have. court; tained instructed to addition, Thompson Eric testified that he disregard.] appellant say, part heard “I am of the East- Thompson further testified after he was something Crips.” shot, officer, he police told a “I was shot During guilt/innoeence stage, Thomp- Crips.” some son testified that the reason he and the de- appeal, appeals On properly court approached appellant ceased was because of applied prong the first and second way appellant and his companions two Lemon test. The court did not were dressed: finding err in that the evidence was sufficient [Thompson] A: [B]ecause manner appellant’s membership establish in the dressed, they were Mack [the Crips beyond doubt,11 a reasonable and that deceased] assumed he could make the evidence was sufficient show that the type some of connection with them illegal engaged in Beasley, activities. because he was—he needed some However, 864 S.W.2d at 810-11. the evi- product. appellant participated dence that in illegal Q: up back [State] Let’s a minute. The conduct motivated related to his mem- dress, manner of their how were bership Crips, prong the third dressed? test, Lemon is insufficient. The State did [Thompson] They A: displaying were cer- establish connection to the paraphernalia tain that was relevant Crips through activities of the evi- activity. drug further, dence of his participation intent to [Objection Counsel; by Defense over- in, approval illegal of those activities. by ruled trial court] appeals The court of held that it was not

necessary link appellant to “each and ev- Eric, Q: just ery type might tell us [State] what of crime that be committed by wearing. group.” Beasley, were the 864 S.W.2d at 811. During hearing admissibility appeal, Appeals 11. on the of On of the Court held that "a presence outside the of the beyond rational could determine a reason- jury, the trial asserted: court doubt, able lined, from the evidence that we have out- [Bjefore any expert give any I will allow Beasley Crips that a member was of the opinion about the activities of the so-called gang.” Beasley, (emphasis at 811 Crips going gang, proof there’s to have to be added). showing that this accused is a member of that gang, for one. unfairly prejudicial. More- Indeed, punishment and Griego the en- testified that courts, of over, following example the intimidation, and record gaged in the witness case, should in the instant linking appellant to the trial court any of is devoid a threshold show- activity. appeals require the to make type of The court of State this hearing the membership at a outside proven If no link ing incorrect: there is of activity allowing and of the before appellant presence between to be gang membership gang, regarding regarding information presumption should be gang minimally relevant to deter- introduced. showing mining appellant. admissibility While its absent against regarding the sentencing permit- it be relevant information it is relevant regarding the it is little gang, by relevance the Rules of Evidence. ted arguendo, appellant. assuming, Even “relevant,” con- without this

the evidence is BAIRD, J., joins. nection, unfairly prejudicial it there- part supra III. See fore inadmissible. linkage, can conclude this

Without encourage

the State offered prove: Ap-

jurors to infer what could illegal

pellant engaged in activities motivated Crips. or related to best, appeals

At court of observed the record indicated that Larry COOK, Appellant, Neil activities, trafficking, at- drug one Crips: at the note that “[W]e

tributed introduced, Beasley time this evidence was Texas, Appellee. The STATE murdering someone stood convicted was, best, purported drug deal.” what No. 0375-94. However, Beasley, 864 S.W.2d at 811. Texas, Appeals of Criminal court of did not find that En Banc. “purported drug conduct deal” participation motivated or related to his June Crips, failing thus to meet the third supra part I. prong of Lemon test. See

Further, if even this evidence was somehow

“relevant,” unfairly appel- prejudicial it is part plu- supra

lant. See III. Because the

rality holds the evidence admissible without

requiring a connection between gang, I dissent. activities

V. Conclusion

Evidence should only when the evidence constitutes

admitted beyond a doubt the de-

proof reasonable membership, illegal purposes or

fendant’s group, and conduct

activities pur- furthering gang’s illegal linkage require a

poses. Trial courts should the defendant and each

between into evidence. of a introduced

activities mini- linkage, is of the evidence

Without assessing the defendant’s

mal relevance

Case Details

Case Name: Beasley v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 28, 1995

Citation: 902 S.W.2d 452

Docket Number: 1365-93

Court Abbreviation: Tex. Crim. App.