IN THE
TENTH COURT OF APPEALS
No. 10-97-349-CV
IN THE MATTER OF P.M.D.
From the 323rd District Court
Tarrant County, Texas
Trial Court # 323-56030-J
O P I N I O N
Appellant P.M.D., a juvenile, appeals from the trial court's judgment revoking his probation and committing him to the Texas Youth Commission.
On October 3, 1994, Appellant was referred to the juvenile authorities for aggravated robbery. He was adjudicated delinquent for unlawfully carrying a weapon and received one-year probation. On November 8, 1995, he was referred to the juvenile authorities for delivery of cocaine. The juvenile court found Appellant had engaged in delinquent conduct and on January 11, 1996, placed him on probation for one year. One of the terms of Appellant's probation required him not to violate any law. The State filed a petition to revoke his probation on September 2, 1996, alleging he committed the offense of unauthorized use of motor vehicle. The court found the allegation "true", but instead of revoking Appellant’s probation, extended his probation to July 4, 1997.
On June 2, 1997, the State filed an amended motion to modify disposition in Appellant's case. After a hearing the court found that Appellant had violated the terms of his probation by committing a misdemeanor possession of marihuana and two felony counts of retaliation. The court then revoked Appellant's probation and committed him to the Texas Youth Commission for an indeterminate period not to exceed his twenty-first birthday.
Appellant appeals on one point of error: “The trial court erred by admitting into evidence irrelevant and extraneous misconduct testimony that Appellant was a gang member.”
Two Fort Worth Police Officers in a patrol unit pulled over a vehicle they saw was without an inspection sticker. Three juvenile males, including P.M.D. were in the vehicle. The officers observed a leafy substance (which turned out to be marihuana) in the seat next to P.M.D. The three juveniles, including P.M.D., were arrested. P.M.D. repeatedly used profanity toward the officers and told them, “cops bleed too,” and that he would assault them if given the opportunity. The officers believed the threats were serious and charged P.M.D. with marihuana possession and two counts of retaliation.
At trial on the State’s motion to revoke the probation of P.M.D., Officer Ost was asked by P.M.D.’s attorney about the opportunity of one of the other juveniles in the car to have moved the marihuana to the front seat.
Officer Ost: The only point to that, to disagree, would be that since I know all three subjects to be gang members.
Counsel: I object to the reference to gang members being extraneous conduct, and its not relevant to his guilt or innocence at this point.
Court: Overruled.
Officer Ost: His affiliation with possible street gangs, all three of them, to me as an officer, would make me more concerned that there might be weapons in the vehicle . . . .
Counsel for P.M.D. did not object. Additionally, Appellant’s counsel did not object to two other times that evidence of Appellant’s gang affiliation was introduced. Specifically, no objection occurred during the State’s examination of Officer Ost about Appellant’s statement that “cops bleed too” and that he would assault them if given the opportunity.
State: Was he planning to do this or was there any indication as to whether or not he was going to do this individually or with others?
Officer Ost: The impression he applied is that it would either be done by himself or by friends of his that are affiliated with his street gang.
Appellant’s counsel did not object. Then Officer Ost was asked about the female juvenile who was one of the three arrested:
State: Are you familiar with her reputation? Is there anything else about her that you know of?
Officer Ost: I know she lives on Davis Street and that she’s also affiliated with a street gang.
Again Appellant’s counsel did not object.
Texas law requires a party to continue to object each time inadmissible evidence is offered in order to preserve error, with two exceptions: (1) via a running objection, and (2) via the rule allowing counsel to lodge a valid objection to all testimony he deems objectionable on a given subject, out of the jury’s presence. Ethrington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). It is well settled that an error in admission of evidence is cured when the same evidence comes in elsewhere without objection. Defense counsel must object every time when allegedly inadmissible evidence is offered. Hudson v. State, 675 S.W.2d 507 (Tex. Crim. App. 1984).
Since trial was before the court there can be little, if any, concern that the evidence was considered for an improper purpose. Appellant’s gang affiliation was only a small part of the evidence. There was ample evidence on the marihuana and the retaliation charges along with Appellant’s prior probations. The court observed at the conclusion of the hearing:
This is your fifth time in court. You were adjudicated the first time on a misdemeanor. You’ve been adjudicated on two felonies, and today I found you violated your probation by engaging in a misdemeanor and two felonies and you are still in the same situation you were in the first time you came in here. You are not learning from your probation. I am going to order that your probation be revoked and you be committed to the Texas Youth Commission.
Under this record we hold that the evidence of Appellant’s gang affiliation, if error, was harmless. Tex. R. App. P. 44.2(b)
Appellant’s point is overruled. The judgment is affirmed.
FRANK G. McDONALD
Chief Justice (Retired)
Before Chief Justice Davis,
Justice Vance, and
Chief Justice McDonald (Retired)
Affirmed
Opinion delivered and filed July 8, 1998
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