Affirmed and Opinion filed July 24, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-07-00683-CR
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CHRISTOPHER SHANE SPENCER, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause No. 1106912
O P I N I O N
A jury convicted appellant Christopher Spencer of robbery and assessed punishment at five years= confinement. In three issues, appellant contends (1) the trial court erred in allowing the State to introduce evidence of gang membership at the guilt/innocence phase of the trial; (2) the evidence was factually insufficient to prove he committed robbery; and (3) the trial court erred in overruling his objection to the State=s closing argument. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On March 4, 2007, Samir Diaz (ADiaz@) attended a quincea_era with his friend, Shelby.[1] He had been invited to the party by Daniel, whom he had known since the fifth or sixth grade.[2] Diaz testified that he consumed three of four drinks of tequila and coke at the party. Shortly after midnight, Diaz and Daniel left the quincea_era to go to Daniel=s parents house for an after-party. At the after-party, Diaz and others stood outside to listen to music, drink, and socialize. Diaz testified that he consumed five or six Budweiser beers at the gathering within approximately an hour to an hour-and-a-half, and that he was Abuzzed.@
Diaz testified that appellant began Atalking mess@ to him at the party and called him a Apussy@ because he had never joined the neighborhood gang. When appellant approached Diaz and began pointing in his face, Diaz attempted to ignore him. When Diaz stepped away to go to the bathroom, appellant hit Diaz in his right eye, causing him to fall to the ground and momentarily black out. When he regained consciousness, he felt several people kicking him in his front and on his back. After Diaz was kicked seven or eight times, his friend Martin intervened and pushed people away. Diaz testified that appellant approached him on the ground, told him Agive me these damn shoes,@ and removed Diaz=s shoes.[3] Appellant then took Diaz=s cell phone from the ground and yanked his watch from his wrist.[4] When Diaz attempted to retrieve his shoes, Martin told him to leave and go home because Ait was possible that they were going to jump me again.@ Diaz subsequently walked home.[5] When Diaz arrived home, his mother and father tried to calm him and prevent him from returning to Daniel=s house to retrieve his possessions. Diaz testified that he felt angry and embarrassed because he had been beaten up and his possessions had been stolen. When Diaz saw Daniel on the street the next day, he asked him whether he knew what had happened to his shoes, to which Daniel responded Ano.@ Diaz testified that, later that day, his father intervened when he and appellant Awere about to get into it.@ When appellant later drove by Diaz=s house again with four or five people in his car, Diaz=s mother became scared and called 9-1-1.
In response to the call, Deputy Michael Santos (ASantos@) was dispatched to investigate the disturbance. Santos testified that Diaz had a black eye and was very emotional and embarrassed. He also testified that Diaz was scared that the group of boys was going to return and retaliate against him. After he spoke with Diaz, Santos went to appellant=s home but appellant was not there. Santos subsequently issued a warrant and appellant was apprehended the following day. The police report reflected that Diaz=s shoes, wallet, and phone were taken.[6]
Martin=s brother, Alfredo, a defense witness, testified that he, appellant, Martin, and Marlen Luna (AMarlen@) also attended the quinceañera and the after-party at Daniel=s house. According to Alfredo, Diaz consumed approximately five shots of tequila at the quinceañera and later consumed more tequila at the after-party. Alfredo testified that Diaz was in Apretty bad shape@ and was swaying back and forth and speaking slowly. Alfredo observed Diaz arguing with Daniel and appellant and then say something to them that made them mad. According to Alfredo, Diaz started the fight by hitting appellant on the chin. After appellant pushed and punched Diaz, Alfredo and Daniel broke up the fight. Alfredo testified that Diaz fell down during the altercation. Alfredo further testified that he did not see appellant take Diaz=s shoes or any of Diaz=s possessions. Afterwards, Alfredo, Martin, Marlen, and appellant left Daniel=s house to go to McDonald=s so that Alfredo could get something to eat. When they returned to Daniel=s house, Alfredo noticed that Diaz was not wearing his shoes.
Marlen testified that she, Alfredo, Martin, and their friend David initially attended the same quinceañera as appellant, but that appellant later drove Alfredo, Martin, and David to another quinceañera and returned to stay with her. After she and appellant left, they picked up Martin and Alfredo at the other party and then drove to Daniel=s house. When they arrived, Marlen noticed that Diaz was Awasted@ and was unable to stand up straight. According to Marlen, Daniel and Diaz were arguing because Daniel wanted Diaz to go home but Diaz refused to do so. Marlen testified that when appellant attempted to help Daniel by telling Diaz to go home, Diaz pushed appellant. After appellant pushed Diaz back, they began fighting. After the fight ended, Marlen, Alfredo, Martin, David, and appellant went to McDonald=s so that David could get something to eat. Marlen testified that she did not see appellant or anyone else take Diaz=s shoes, cell phone, or watch. Upon returning from McDonald=s, Marlen noticed that Diaz was no longer wearing his shoes. Appellant subsequently took Marlen home.
The jury found appellant guilty of robbery and assessed his punishment at five years= confinement. Appellant timely filed this appeal.
II. ANALYSIS
A. Admissibility of Gang-Related Evidence
In his first issue, appellant argues the trial court erred in permitting the State to Ainterject alleged gang membership at the guilt/innocence phase of the trial.@ Specifically, he contends the evidence was irrelevant, highly prejudicial, and constituted inadmissible character evidence.
After voir dire and prior to opening statements, defense counsel informed the court of the State=s intention to introduce evidence regarding defendant=s alleged gang membership. Defense counsel objected, arguing the evidence was inadmissible character evidence under Rule 404(a). The State countered the evidence was admissible under Rule 404(b) because it showed defendant=s motive for the robbery. The court overruled defense counsel=s objection.
On direct examination, Diaz testified his neighborhood was no longer safe due to gang rivalry. Defense counsel objected to the introduction of any evidence pertaining to gangs as irrelevant and re-urged his previous objection. After the court overruled the objection, it granted defense counsel=s request for a running objection. The State then elicited the following testimony from Diaz: (1) the Gulf Bank Crips is the neighborhood gang; (2) Diaz knows some of the members of the Gulf Bank Crips; (3) Diaz has never been a member of a gang, although he has been asked two or three times to join the Gulf Bank Crips; (4) Diaz is not sure if appellant is a member of the Gulf Bank Crips; (5) Diaz still hangs out with friends who are members of the Gulf Bank Crips because he was friends with them before they joined and he does not judge them; (6) Diaz does not know how many people who attended the after-party at Daniel=s house were not gang members; and (7) appellant called Diaz a Apussy@ because he never joined the neighborhood gang.
Appellant first argues Diaz=s gang-related testimony was inadmissible because it was irrelevant. In support of his argument, he cites to Dawson v. Delaware, 503 U.S.159 (1992) and Mason v. State, 905 S.W.2d 570 (Tex. Crim. App. 1995), for the proposition that, in order to show the relevance of a defendant=s membership in an organization or group, the State must show (1) proof of the group=s violent and illegal activities, and (2) the defendant=s membership in the organization. Dawson, 503 U.S. at 163-67; Mason, 905 S.W.2d at 577. However, as the State correctly notes, these cases involved the admissibility of character evidence during the punishment phase of a trial and, thus, are inapposite here.
Appellant next argues the gang-related evidence was inadmissible under Texas Rules of Evidence 402 and 404. Specifically, he contends that by introducing irrelevant evidence of his alleged gang affiliation, the State attempted to show that he acted in conformity with his bad character when he committed the robbery, thus violating Rule 404(a).
Rule 404(b) provides, in relevant part:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . .
Tex. R. Evid. 404(b). As the Texas Court of Criminal Appeals has noted, Ait has long been the rule in this State that the jury is entitled to know all the relevant surrounding facts and circumstances of the charged offense; an offense is not tried in a vacuum.@ Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App. 1986) (en banc). Appellate review on the admissibility of evidence is conducted under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). An appellate court is bound to uphold the trial court=s ruling regarding the admissibility of evidence if it was within the zone of reasonable disagreement. Id.
The State=s theory was that appellant=s motive in committing the robbery was gang-related; that is, appellant robbed Diaz because he was not a member of a gang. To support its theory, the State offered Diaz=s testimony that (1) the Gulf Bank Crips are the neighborhood gang; (2) his neighborhood was no longer safe due to gang rivalry; (3) he has been asked on several occasions to join the gang but has not done so; (3) he still hangs out with friends who are members of the Gulf Bank Crips; (4) he does not know how many of those who attended Daniel=s after-party were non-gang members; and (5) appellant called Diaz a Apussy@ because he had never joined the gang. The State contends the evidence of appellant=s gang affiliation was used to show motive, rather than character conformity, thus making the evidence admissible under Rule 404.
The Court of Criminal Appeals has held that gang membership evidence is admissible under Rule 404(b) (and Rule 402) if it is relevant to show a non-character purpose that, in turn, tends to show the commission of the crime. See Ortiz v. State, 93 S.W.3d 79, 94 (Tex. Crim. App. 2002) (finding evidence of incarcerated defendant=s gang affiliation admissible under Rule 404(b) to show a variety of non-character purposes relevant to showing defendant=s guilt); Vasquez v. State, 67 S.W.3d 229, 239B40 (Tex. Crim. App. 2002) (citing Medina v. State, 7 S.W.3d 633, 643 (Tex. Crim. App. 1999)) (concluding evidence of appellant=s gang affiliation was relevant to show motive for allegedly gang-related crime). Because evidence of appellant=s gang affiliation was relevant to show his motive for the robbery, rather than mere conformity with character, it was admissible under Rules 402 and 404.[7]
Finally, appellant=s argument that admission of the evidence violated Rule 403 because it Acreated prejudice against [him]@ is equally unavailing. To violate Rule 403, it is not enough that the evidence is prejudicial; instead, it must be unfairly prejudicial. Vasquez, 67 S.W.3d at 240; Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999). Unfair prejudice occurs when the evidence has Aan undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.@ Vasquez, 67 S.W.3d at 240 (citation omitted). The potential improper basis would be the use of gang affiliation to demonstrate that appellant was a bad person and that he acted in conformity with his bad character. See id. However, we conclude that the trial court did not err in finding that this potential character conformity inference did not substantially outweigh the relevant purpose of showing motive for the robbery. Appellant=s gang affiliation was not only relevant but absolutely critical to show the motive for his crime. See Beltran v. State, 99 S.W.3d 807, 811 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d) (finding admission of evidence regarding appellant=s gang affiliation absolutely necessary to show motive for crime). Appellant=s first issue is overruled.
B. Factual Sufficiency
In his second issue, appellant contends the evidence was factually insufficient to prove he committed robbery as defined under section 29.02 of the Texas Penal Code. Specifically, he argues the evidence failed to show appellant=s assault of Diaz was related to the theft of his property. He further contends Diaz=s account of the events at issue was refuted by other witnesses.
Before we address factual sufficiency, we note appellant has failed to bring a challenge to the legal sufficiency of the evidence. Thus, he has conceded the evidence is legally sufficient to permit a rational jury to find the essential elements of the offense. See Clewis v. State, 922 S.W.2d 126, 134B36 (Tex. Crim. App. 2006) (holding the factual sufficiency review begins with presumption the evidence supporting the jury=s verdict was legally sufficient). If the evidence were not legally sufficient, this court would not reach a factual sufficiency point of error, having acquitted the defendant. See Watson v. State, 204 S.W.3d 404, 415B16 (Tex. Crim. App. 2006).
Under a factual sufficiency review, a verdict will not be set aside unless (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. See Grotti v. State, ___ S.W.3d ___, 2008 WL 2512832, at *7 (Tex. Crim. App. June 25, 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007). Under the first prong, an appellate court cannot conclude a conviction is Aclearly wrong@ or Amanifestly unjust@ simply because it would have voted to acquit had it been on the jury. Watson, 204 S.W.3d at 417. Instead, a reviewing court=s authority to disagree with the jury=s credibility determination is appropriate only when the record clearly indicates it is necessary to correct a manifest injustice. Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). Similarly, under the second prong, a reviewing court cannot declare that conflict in the evidence justifies a new trial simply because it disagrees with the jury=s resolution of that conflict. Watson, 204 S.W.3d at 417. Before finding that evidence is insufficient to support the verdict under the second prong, a reviewing court must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence, albeit legally sufficient, contradicts the jury=s verdict. Id. Unlike a legal sufficiency review under which the evidence is viewed in the light most favorable to the prosecution, a factual sufficiency review requires the court to view all of the evidence in a neutral light. See id. at 415. With these principles in mind, we turn to the record before us.
A person commits robbery if, in the course of committing theft, and with the intent to obtain or maintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury to another. See Tex. PenAl Code Ann. ' 29.02 (Vernon 2003). Appellant argues that the evidence fails to establish the requisite connection between Diaz=s assault and the theft of his possessions. His argument is without merit. The record reflects that appellant called Diaz a Apussy@ at Daniel=s after-party because Diaz never joined the neighborhood gang. When Diaz attempted to walk away, appellant hit him in his right eye, knocking him to the ground. Appellant then took Diaz=s shoes, cell phone, and watch. In a robbery case, a theft occurring immediately after an assault will support an inference that the assault was intended to facilitate the theft. Cooper v. State, 67 S.W.3d 221, 224 (Tex. Crim. App. 2002). Moreover, such an inference will support a conviction even in the absence of additional evidence supporting the nexus. See id. The evidence here is sufficient to support an inference that appellant assaulted Diaz in the course of committing theft. See id.
Appellant also contends the evidence is factually insufficient because Alfredo and Marlen testified they never saw appellant take Diaz=s shoes, cell phone, or watch. Instead, they both testified that, after returning from McDonald=s, they noticed that Diaz was not wearing his shoes. However, as previously discussed, the jury is the exclusive judge of the credibility of the witnesses and the weight to be accorded their testimony. See Johnson, 23 S.W.3d at 9. The jury could have chosen to believe all, some, or none of the testimony presented. See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991) (en banc); Denman v. State, 193 S.W.3d 129, 132 (Tex. App.CHouston [1st Dist.] 2006, pet. ref=d). Further, the testimony of a single eyewitness may be sufficient to support a jury=s verdict. Walker v. State, 180 S.W.3d 829, 832 (Tex. App.CHouston [1st Dist.] 2005, no pet.). Here, the jury could have believed Diaz=s testimony and chosen to disbelieve Alfredo and Marlen=s testimony. Appellant=s second issue is overruled.
C. Jury Argument
In his third issue, appellant contends the trial court erred in overruling defense counsel=s objection to the State=s closing argument. Specifically, he argues that several portions of the prosecutor=s argument were (1) outside of the record; (2) an improper plea for law enforcement; and (3) designed to inflame or bias the jury into finding appellant guilty of robbery by virtue of gang activity.[8]
Proper jury argument falls within one of four categories: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) in response to argument of opposing counsel; and (4) plea for law enforcement. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). However, even when an argument exceeds the permissible bounds of these approved areas, an error will not constitute reversible error unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial proceeding. Id. Attorneys may draw all reasonable, fair, and legitimate inferences from the facts in evidence. See Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996); Allridge v. State, 762 S.W.2d 146, 156 (Tex. Crim. App. 1988).
Appellant complains about several remarks that the prosecutor made in the following portion of the State=s closing argument:
PROSECUTOR: Why do you think [Diaz] sat up in that chair with a slouched posture and refused to look over to that side of the room? Why do you think he [sic] evasive when he was being questioned at times? Do you think it has anything to do with the fact that Chris Spencer was driving past his house the day of the robbery with five of his friends in the car? Don=t you think that has something to do with it? Admittedly folks he=s a young kid. He=s grown up in a rough area of town. Most of the people that he=s grown up with have joined gangs but he hadn=t. Why hadn=t he? >Cause he knows that=s not the right thing to do. And that=s the same thing that brought him here despite the danger that he may be putting himself in by coming here to testify. Don=t you think he=s worried about his mom, his little sister and himself, about what=s going to happen because he came here and told you what happened to him?
DEFENSE COUNSEL: Objection Your Honor that=s outside the record and improper plea for law enforcement.
THE COURT: Overruled.
Appellant first argues the prosecutor=s last remark regarding Diaz=s concern for himself and his family is unsupported by the record. He contends Santos=s testimony that Diaz=s parents and sister were present when he arrived at the scene of the disturbance, and that Diaz appeared embarrassed and emotional, does not support the State=s argument that Diaz was worried about the consequences of his testimony with regard to himself and his family. However, Santos also testified that Diaz was crying and Awas scared that this group of guys were going to come back and kind of retaliate against him is what he was more afraid of.@ Thus, when viewed in context of the entire record, the State=s closing remark that Diaz was worried about the consequences of his testimony with regard to his family=s safety was a reasonable deduction from the evidence presented at trial.
Appellant also complains that the prosecutor=s remarks that Diaz had not joined a gang because he knew Athat=s not the right thing to do@ and Athat=s the same thing that brought him here@ to testify are outside of the record.[9] With regard to the first remark, the record reveals that when asked why he had not joined a gang despite being asked to do so on several occasions, Diaz testified, A[i]t=s not something I wanted to do.@ Based on this testimony, the prosecutor drew a reasonable and legitimate inference that Diaz did not join a gang because he did not think it was the right thing to do. See Shannon, 942 S.W.2d at 597. As such, it was not an improper jury argument.
As to the second remarkCAAnd that=s the same thing that brought him here despite the danger that he may be putting himself in by coming here to testify@Cin light of the prosecutor=s preceding statement, we interpret Athat=s the same thing@ to mean that Diaz decided to testify because he knew it was the right thing to do. However, contrary to the State=s suggestion that he decided to testify out of a sense of propriety, the record shows that Diaz did not want to testify and only did so because he had been subpoenaed. This remark was unsupported by the record and, thus, improper. Because the trial court erred in overruling defense counsel=s objection, we next determine whether such error was harmless.
If a jury argument exceeds the bounds of proper argument, the trial court=s erroneous overruling of a defendant=s objection is not reversible error unless it affected the defendant=s substantial rights. See Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000). In determining whether the defendant=s substantial rights were affected, we consider (1) the severity of the misconduct (i.e., the prejudicial effect of the prosecutor=s remarks); (2) curative measures; and (3) the certainty of conviction absent the misconduct. Id. at 692B93. Here, we find that the severity of the prosecutor=s misconduct was minimal. The focus of her argument was on Diaz=s fear of retaliation for his testimony rather than on his reasons for testifying. See id. Even absent the alleged misconduct, there was a significant degree of certainty of conviction given the evidence presented against appellant at trial. See id. Moreover, other than perfunctorily concluding that the prosecutor=s remarks had a substantial, profound, and injurious effect or influence on the jury=s verdict, appellant offers no argument or analysis to support his argument. See Tex. R. App. P. 38.1(h). Therefore, we hold that although the trial court erred in overruling appellant=s objection, such error did not affect his substantial rights. See Tex. R. App. P. 44.2(b). Appellant=s third issue is overruled.
III. CONCLUSION
Having overruled appellant=s three issues, we affirm the judgment of the trial court.
/s/ John S. Anderson
Justice
Judgment rendered and Opinion filed July 24, 2008.
Panel consists of Justices Anderson, Yates, and Brown.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] The quincea_era is, in some Spanish-speaking regions of the Americas, a young woman=s celebration of her fifteenth birthday, which is commemorated in a unique and different way from her other birthdays. See http://www.wikipedia.org.
[2] At the time of trial, Diaz was 19 years old.
[3] According to Diaz, the Air Jordan basketball shoes he was wearing that night cost between $100 and $150.
[4] Diaz=s phone cost $300. His watch had been a present from his mother for his 18th birthday.
[5] Diaz testified that he and Daniel live on the same street and that Daniel=s house is approximately a two-minute walk from his house.
[6] On re-direct, Diaz clarified that his wallet had not been taken.
[7] The fact that Diaz was unsure whether appellant was a member of the Gulf Bank Crips does not render the gang-related evidence inadmissible. Diaz testified that he had met appellant in junior high school when Diaz was in the seventh grade. He testified his neighborhood was no longer safe due to gang rivalry, and that the Gulf Bank Crips was the neighborhood gang. Diaz knew some members of the Gulf Bank Crips, and some of his childhood friends were gang members. Diaz had not joined the neighborhood gang despite being asked to do so several times. Diaz testified that appellant called him a Apussy@ at the after-party because he had not joined the gang. As the trier of fact, the jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. See Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999); Bargas v. State, 252 S.W.3d 876, 887 (Tex. App.CHouston [14th Dist.] 2008, no pet.). Further, the jury is entitled to draw reasonable inferences from circumstantial evidence to ultimate facts. See Villani v. State, 116 S.W.3d 297, 303 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d). In light of Diaz=s testimony, the jury could have reasonably inferred that appellant was affiliated with, or a member of, the Gulf Bank Crips.
[8] Although appellant initially frames his argument as a challenge to the prosecutor=s closing argument on these three grounds, a review of his brief reveals that he argues only that the record does not support the prosecutor=s argument. Indeed, to each challenged portion of the State=s argument, appellant asserts that A[t]he record is void of any evidence to substantiate the State=s closing argument,@ or A[t]he record also does not substantiate the State=s final argument.@ Because appellant fails to provide any argument or citation to authority to support his assertions that the State=s closing arguments were outside of the record, an improper plea for law enforcement, or designed to bias the jury, he has waived these grounds on appeal. See Tex. R. App. P. 38.1(h); Salazar v. State, 38 S.W.3d 141, 147 (Tex. Crim. App. 2001) (dismissing points of error where appellant=s brief presented no authority in support of his argument).
[9] The State argues that defense counsel did not object to these two remarks and, in failing to do so, waived his complaint on appeal. See Tex. R. App. P. 33.1. However, it is unclear whether defense counsel=s objection was aimed solely at the prosecutor=s final remark regarding Diaz=s fear of retaliation, or whether it was also in response to her remarks related to Diaz=s reasons for not joining a gang and for testifying. We therefore give appellant the benefit of the doubt and assume that his trial counsel=s objection was directed to all three remarks.