IN THE
TENTH COURT OF APPEALS
No. 10-04-00348-CR
Tina Lynn Hooper,
Appellant
v.
The State of Texas,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2002-1246-C
MEMORANDUM Opinion
Hooper attempts to appeal the revocation of her deferred-adjudication community supervision for forgery by check. See Tex. Penal Code Ann. § 32.21(a) (Vernon 2003); Act of May 29, 1993, 73d Leg., R.S., ch. 900, art. 1, § 1.01, sec. 32.21(d), 1993 Tex. Gen. Laws 3586, 3644 (amended 2003) (current version at Tex. Penal Code Ann. § 32.21(d) (Vernon Supp. 2005)); Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a)-(b) (Vernon Supp. 2005). We affirm.
In two issues, Hooper attempts to complain of the trial court’s restitution order in Hooper’s original guilty plea proceeding. “[A] defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding, such as evidentiary sufficiency, only in appeals taken when deferred adjudication community supervision is first imposed.” Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001) (quoting Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999)). We dismiss Hooper’s issues.
Having dismissed Hooper’s issues, we affirm. See Emich v. State, 138 S.W.3d 398, 401 (Tex. App.—Waco 2004, no pet.) (mem. op.).
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed April 5, 2006
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kept in the normal course of the operation of the probation department; is that correct?
A: That’s correct.
Q: Okay. Records made by people who have personal knowledge of the entries, is that right?
A: That’s correct.
Q: Okay. And you’ve had a chance to look at that. And based on what you’ve seen in those records, do you have an opinion on whether Ms. Rollins is a truthful person or not?
A: Yes, I do.
Q: And what would that be?
A: That she is not a truthful person.
It is apparent that at the trial court, Davis was seeking to elicit testimony regarding the probation officer’s opinion regarding the victim’s character for truthfulness, not the victim’s reputation for truthfulness. However, his complaint to this Court relates solely to reputation evidence. Testimony regarding a witness’s opinion of the victim’s character for truthfulness is not the same as a witness’s knowledge of the victim’s reputation for truthfulness. See, generally, Scott v. State, 222 S.W.3d 820, 823-826 (Tex. App.—Houston [14th Dist.] 2007, no pet.). The first is the direct opinion of the witness, which could be based solely on personal knowledge. The second is based on significantly more information. Reputation evidence must be based on conversations with others or hearing others discuss the reputation of the individual in question, not just personal knowledge. See Adanandus v. State, 866 S.W.2d 210, 226 (Tex. Crim. App. 1993). Davis’s complaint does not comport with his objection at trial. To preserve error for appellate review, the point of error on appeal must comport with the objection made at trial. See Tex. R. App. P. 33.1; see also Sorto v. State, 173 S.W.3d 469, 476 (Tex. Crim. App. 2005). We overrule issue one.
Evidence of Gang Membership
Davis complains that the trial court erred by allowing the introduction of evidence of his purported membership in the “Crips,” including the introduction of a photograph of Davis making a gang sign in the punishment phase of his trial. Davis contends that the admission of the gang-related evidence was more prejudicial than probative. However, during the testimony given relating to Davis’s purported gang membership and the activities of the Crips in general, Davis only objected one time on the basis of relevance. Therefore, we limit our consideration of this issue to the only time Davis objected on the basis that the evidence was more prejudicial than probative, which was at the time of the admission of the photograph. See Tex. R. App. P. 33.1.
We review challenges to the admission of evidence for an abuse of discretion by the trial court. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g) (“as long as the trial court's decision was within the zone of reasonable disagreement and was correct under any theory of law applicable to the case, it must be upheld”). Evidence of membership in a gang during the punishment phase of a trial is generally admissible as evidence of the defendant’s character, as is evidence relating to the activities of the gang. Beasley v. State, 902 S.W.2d 452, 456-57 (Tex. Crim. App. 1995). Davis does not cite to any authorities in support of his contention that the photograph should have been excluded. We do not believe that the admission of the photograph of Davis was outside of the zone of reasonable disagreement. We overrule issue two.
Conclusion
We find that the argument made in this appeal regarding the admission of the opinion of the probation officer does not comport with his objection at trial. We find that the trial court did not abuse its discretion in the admission of a photograph of Davis making a gang sign. We affirm the judgment of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed July 21, 2010
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