Michael Romero v. State

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

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MICHAEL ROMERO, No. 08-10-00074-CR
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Appellant, Appeal from
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v. 409th District Court
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THE STATE OF TEXAS, of El Paso County, Texas
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Appellee. ' (TC # 20080D04785)

OPINION

Michael Romero is appealing his convictions of murder (Count I) and engaging in

organized criminal activity (Counts II and III). We affirm.

FACTUAL SUMMARY

Valentin Ray Rodriguez and several friends, including Blake Klimasara, David Medina,

Rolando Granado, Michael Maldonado, Michael Bocanegra, and John Gutierrez, attended a party

at the home of Alexander Johnson. Klimasara estimated that thirty-five people were at the party

and he did not know all of them. Appellant, who is a member of the criminal street gang, the

Crips, went to the party with Shaka King and several women. Other gang members were in

attendance, including Marcus White, Jory Babers, Antoine Baker, and Jerome “Swat” Saunders.

These individuals are either members of the Crips or Hated by Many, which is a subset of the

Crips. Michael Maldonado testified that several males at the party were throwing the Crips

“gang sign.”

After they had been at the party for about an hour, Rodriguez saw Marcus White kissing

Aileen Favela, who is the girlfriend of a close friend, so he pulled her aside and said something
to her. She asked Rodriguez not to tell her boyfriend. Rodriguez then went into the restroom.

White was upset and began telling his friends that Rodriguez was a “cock block.” Klimasara

explained that the term is used when an individual interferes with a guy’s chances of picking up

a girl. When Rodriguez came out of the restroom, White confronted him and both White and

Appellant started calling him a “cock block.” With several people crowded around, White and

Rodriguez began shouting at each other and then White and his friends began pushing

Rodriguez. Antoine Baker testified that he was the first person to punch Rodriguez. Appellant

then struck Rodriguez in the side of the head with a fist. White joined Baker and Appellant in

punching him. Medina began pushing Rodriguez toward the front door while attempting to

block the punches thrown by the group of men chasing them. Once outside, Appellant, White,

and the others began assaulting Rodriguez and he fell or was pushed to the ground. Some

witnesses stated that White punched Rodriguez in the face and he fell, striking his head on the

sidewalk. While Rodriguez was on the ground, the group continued to kick and stomp him until

Johnson got in the middle of the group and began pushing people away. Witnesses identified

Appellant as one of the people who kicked Rodriguez in the head and torso while he was on the

ground. After Johnson stopped the assault, Klimasara went over to Rodriguez and saw that he

was unconscious and bleeding from the nose and the back of the head. Medina, Maldonado, and

Bocanegra carried Rodriguez to a car and they left. Appellant found one of Rodriguez’s shoes in

the front yard and held it up while laughing, stating, “[W]e got the shoe of the guy who got beat

up.” When they went back inside of the house, Appellant was waving the shoe and stating that

he “whooped his ass.”

Rodriguez’s friends took him back to his apartment rather than taking him to a hospital.

Rodriguez did not regain consciousness and his friends found him unresponsive and not

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breathing the following morning. Emergency medical personnel arrived at the scene and

performed CPR but Rodriguez was pronounced dead at the scene.

Dr. Paul Shrode, the Chief Medical Examiner for El Paso County, performed the autopsy.

The external examination showed bruising and abrasions on the face, neck, and back. The

bruising was consistent with multiple assailants punching, kicking, and stomping the victim. The

left eye was swollen shut and there was an abrasion on the right side of the face. Dr. Shrode also

found two contusions on the back of the head with the larger one on the occipital region. Just

beneath the large abrasion, Dr. Shrode discovered a large skull fracture. When Dr. Shrode

examined the brain, he found multiple impact sites and blunt force trauma consistent with the

victim’s head receiving multiple blows by being punched, kicked, or stomped. The examination

of the brain also revealed subarachnoid hemorrhages. In Dr. Shrode’s opinion, the skull fracture

was consistent with Rodriguez falling and striking his head on a hard surface.

The internal examination also revealed that Rodriguez had suffered significant trauma to

the atlanto occipital joint which is where the cervical spine joins the skull. This type of injury

could have been caused by the victim being kicked in the head. Bruising was also found in the

muscles of the neck consistent with the victim being kicked or stomped on the neck. During the

examination of the internal organs, Dr. Shrode discovered that the lungs and heart had been

bruised during the assault. He described the injuries to one of the lungs as severe trauma.

Dr. Shrode testified that the injuries to the skull, brain, atlanto occipital joint, heart, and lungs

constituted serious bodily injury which created a risk of death. With respect to cause of death, he

explained that in forensic pathology, there are two types of causes of death: immediate cause of

death and proximate cause of death. The proximate cause of death is the thing that put it all in

motion which in this case, is the blow to the head which caused the skull fracture and the brain

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injury. The immediate cause of death was that Rodriguez’s heart stopped beating as a result of

the brain injury. In his opinion, the main cause of death was the blunt force trauma to the head

but the injuries to the lungs and heart could have resulted in death if not for the brain injury.

The jury found Appellant guilty of murder (Count I) and engaging in organized criminal

activity (Counts II and III) as alleged in the indictment. With respect to Count I, the jury

assessed Appellant’s punishment at imprisonment for a term of fifteen years and a fine of

$10,000. As to Counts II and III, the jury assessed Appellant’s punishment at imprisonment for

a term of ten years, probated for ten years.

SUFFICIENCY OF THE EVIDENCE

In Point of Error One, Appellant challenges the legal and factual sufficiency of the

evidence supporting his convictions. Approximately six months before Appellant filed his brief,

the Court of Criminal Appeals abandoned factual sufficiency review in those cases where the

burden of proof is beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 894-95

(Tex.Crim.App. 2010)(finding no meaningful distinction between the legal and factual

sufficiency standards and no justification for retaining both standards, therefore overruling the

factual sufficiency review adopted in Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.

1996)). The Court determined that the legal sufficiency standard articulated in Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), is the only standard a

reviewing court applies in determining whether the evidence is sufficient to support a conviction.

Brooks, 323 S.W.3d at 894-95. Therefore, in accordance with Brooks, we will review

Appellant’s sufficiency claims under the Jackson legal-sufficiency standard and determine

whether the evidence is sufficient to support each challenged element of the criminal offense

beyond a reasonable doubt. See Brooks, 323 S.W.3d 894-95, citing Jackson, 443 U.S. at 319, 99

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S.Ct. 2789.

Under the Jackson standard, a reviewing court must consider all of the evidence in the

light most favorable to the verdict and in doing so determine whether a rational justification

exists for the jury’s finding of guilt beyond a reasonable doubt. Brooks, 323 S.W.3d at 894-95,

citing Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. As the trier of fact, the jury is the sole judge as

to the weight and credibility of witness testimony, and therefore, on appeal we must give

deference to the jury’s determinations. Brooks, 323 S.W.3d at 894-95. If the record contains

conflicting inferences, we must presume the jury resolved such facts in favor of the verdict and

defer to that resolution. Id. On appeal, we serve only to ensure the jury reached a rational

verdict, and we may not reevaluate the weight and credibility of the evidence produced at trial

and in so doing substitute our judgment for that of the fact finder. King v. State, 29 S.W.3d 556,

562 (Tex.Crim.App. 2000). In our review, we consider both direct and circumstantial evidence

and all reasonable inferences that may be drawn from the evidence. Hooper v. State, 214 S.W.3d

9, 13 (Tex.Crim.App. 2007). The standard of review as to the sufficiency of the evidence is the

same for both direct and circumstantial evidence cases. Id.; Arzaga v. State, 86 S.W.3d 767, 777

(Tex.App.--El Paso 2002, no pet.).

Count I - An Act Clearly Dangerous to Human Life

Appellant first argues that the evidence is insufficient to prove beyond a reasonable doubt

that he committed an act clearly dangerous to human life. Count I of the indictment charged

Appellant with murder under Section 19.02(b)(2) of the Texas Penal Code and included six

paragraphs alleging different manner and means (Paragraphs A through F). See TEX.PENAL

CODE ANN. § 19.02(b)(2)(West 2011). Paragraph A alleged that Appellant, with intent to

cause serious bodily injury to Valentin Ray Rodriguez, committed an act clearly dangerous to

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human life, to-wit: striking Rodriguez about the body and head with Appellant’s hand and

kicking Rodriguez about the body and head with Appellant’s foot.1 Paragraphs B through F

alleged that Appellant committed an act clearly dangerous to human life by: chasing and

assaulting Rodriguez in concert with other individuals (Paragraph B); striking Rodriguez about

the head with the hand of the Appellant (Paragraph C); striking Rodriguez about the body with

the hand of the Appellant (Paragraph D); kicking Rodriguez about the head with the foot of the

Appellant (Paragraph E); and kicking Rodriguez about the body with the foot of the Appellant

(Paragraph F). The court’s charge included an instruction on the law of parties and permitted the

jury to find Appellant guilty of murder as the primary actor or as a party. The jury found

Appellant guilty of Count I as charged in the indictment.

In his brief, Appellant challenges the sufficiency of the evidence supporting his

conviction of Count I on the ground that the State failed to prove that he committed an act clearly

dangerous to human life which caused Rodriguez’s death. Appellant argues that it was Marcus

White who struck Rodriguez causing him to fall and strike his head on the sidewalk and that was

the injury which resulted in Rodriguez’s death. Appellant does not challenge any other elements

of Count I, such as identity or intent to cause serious bodily injury, and he does not address the

parties theory at all. We begin by addressing the law of parties.

A person is criminally responsible as a party to an offense if the offense is committed by

his own conduct, by the conduct of another for which he is criminally responsible, or by both.

TEX.PENAL CODE ANN. § 7.01(a)(West 2011). The trial court’s charge instructed the jury

that a person is criminally responsible for an offense committed by the conduct of another if,

1
Paragraphs A through F further alleged that Appellant used and exhibited a deadly weapon during the commission
of the offense, namely, his hand and/or foot during the commission of the offense. Appellant does not challenge the
sufficiency of the evidence to prove the deadly weapon allegation.

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acting with intent to promote or assist the commission of the offense, he solicits, encourages,

directs, aids, or attempts to aid the other person to commit the offense. See TEX.PENAL CODE

ANN. § 7.02(a)(2)(West 2011). The charge also instructed the jury that mere presence at the

scene of an offense will not make a person a party to an offense. The application paragraph of

the court’s charge does not apply the law of parties to the facts of the case but we must measure

the sufficiency of the evidence by a hypothetically correct jury charge. See Adames v. State, 353

S.W.3d 854, 861-62 (Tex.Crim.App. 2011). Applying the law of parties to the offense of murder

under Section 19.02(b)(2) and to the evidence as it relates to Paragraph A of Count I, Appellant

is criminally responsible as a party to this offense if, acting with the intent to promote or assist in

the commission of the murder of Rodriguez by Marcus White, Antoine Baker, James Templeton,

or Jory Babers, Appellant solicited, encouraged, directed, aided, or attempted to aid White to

commit the murder, and White, Baker, Templeton, or Babers, acting with the intent to cause

serious bodily injury to Rodriguez, committed an act clearly dangerous to human life, to-wit,

striking Rodriguez about the head and body with the hand of White, Baker, Templeton, or

Babers, and kicking or stomping Rodriguez about the head and body with the foot of White,

Baker, Templeton, or Babers, that caused Rodriguez’s death. In determining the sufficiency of

the evidence under the law of parties, this Court may look to events occurring before, during, and

after the offense, and may rely on actions of the defendant that show an understanding and

common design to commit the offense. King, 29 S.W.3d at 564.

The evidence showed that Appellant instigated the assault which led to Rodriguez’s

death. James Templeton testified that he was in the backyard with Antoine Baker and Jory

Babers when Appellant approached them and talked about “violating someone because they

didn’t know their Crip knowledge.” Templeton explained that “violating somebody” meant

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hitting someone who disrespected you. Templeton said that Romero and the others went inside

and about a minute later the “ruckus” started inside of the house. Appellant further instigated the

assault by yelling “cock blocker” at Rodriguez. He participated in the initial assault on

Rodriguez by striking him in the head with his fist while Rodriguez and White were yelling at

each other in the house. Appellant, along with White and the other assailants, chased Rodriguez

out of the house and they continued to assault him in the front yard by punching and kicking

him. At least one witness said that Appellant pushed Rodriguez to the ground and the group,

including White, Baker, Templeton, and Babers, surrounded Rodriguez and began punching,

kicking, and stomping his head and body. Other witnesses said that White struck Rodriguez’s

head with his fist and Rodriguez fell and struck his head on the sidewalk knocking him

unconscious. The group, including White and Romero, then began violently stomping and

kicking Rodriguez’s head and body and the attack continued for one to two minutes until other

people pulled the assailants away from Rodriguez. The evidence also showed that Appellant

picked up Rodriguez’s shoe after the assault and held it up like a trophy while laughing.

Appellant also told people after the assault that they had “whooped his ass.” A rational trier of

fact could have reasonably concluded that Appellant acted with the intent to promote and assist

in the commission of the murder under Section 19.02(b)(2) and he directed, encouraged, and

aided the co-defendants’ commission of murder by telling the co-defendants they were going to

“violate” Rodriguez, yelling at Rodriguez and making one of the initial punches to Rodriguez’s

head while he and White were shouting at each other, chasing Rodriguez outside, pushing him to

the ground, kicking him while he was on the ground, and bragging about the assault after

Rodriguez’s friends dragged him away, unconscious and badly injured. See Johnson v. State,

No. 05-04-00971-CR, 2006 WL 401127, at *3 (Tex.App.--Dallas, Feb. 22, 2006, pet. ref’d)(not

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designated for publication)(evidence sufficient to support defendant’s murder conviction as a

party where he instigated the fight with the victim and participated in assault on the victim with

co-defendant). Given our conclusion that the evidence is legally sufficient to support

Appellant’s conviction as a party, it is unnecessary to address whether it is also sufficient to

support his conviction as a principal or primary actor. Issue One is overruled.

Counts II and III

Appellant next argues that the evidence is insufficient to support his convictions of

engaging in organized criminal activity. We understand him to argue that the State failed to

prove beyond a reasonable doubt that he committed the offense of aggravated assault with intent

to participate as a member of the criminal street gang, Hated by Many.

Section 71.02(a)(1) of the Penal Code provides, in relevant part, that a person commits an

offense if, with intent to establish, maintain, or participate as a member of a criminal street gang,

the person commits or conspires to commit one or more of the listed offenses, including

aggravated assault. TEX.PENAL CODE ANN. § 71.02(a)(1)(West Supp. 2012). A criminal

street gang is defined to mean three or more persons having a common identifying sign or

symbol or an identifiable leadership who continuously or regularly associate in the commission

of criminal activities. TEX.PENAL CODE ANN. § 71.01(d)(West 2011). Count II of the

indictment alleged that Appellant, with intent to participate as a member of a criminal street

gang, Hated by Many, committed the offense of aggravated assault by causing serious bodily

injury to Rodriguez. See TEX.PENAL CODE ANN. § 22.02(a)(1)(West 2011). The application

paragraph of the court’s charge authorized the jury to convict Appellant if it found that he

committed the offense of aggravated assault with intent to participate as a member of Hated by

Many, Hoover Street, and/or the Crips. Count III alleged that Appellant, with intent to

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participate as a member of a criminal street gang, Hated by Many, committed the offense of

aggravated assault by using or exhibiting a deadly weapon during the commission of the assault

and causing bodily injury to Rodriguez. See TEX.PENAL CODE ANN. § 22.02(a)(2). The

application paragraph permitted the jury to find Appellant guilty of Count III if it found that he

committed the offense of aggravated assault with intent to participate as a member of Hated by

Many, Hoover Street, and/or the Crips.

We do not understand Appellant to argue that the State failed to prove that he committed

the offense of aggravated assault as alleged in Counts II and III. 2 We have construed his brief as

asserting that the evidence is insufficient to prove that he acted with the requisite specific intent

to participate as a member of the Crips. Intent may be inferred from circumstantial evidence

such as acts, words, and the conduct of the appellant. Guevara v. State, 152 S.W.3d 45, 50

(Tex.Crim.App. 2004). There is substantial evidence showing that Romero is a member of the

Crips, a criminal street gang, and he associates with the criminal street gang, Hated by Many.

Committing assaults is one of the criminal activities engaged in by the Crips. Appellant

committed the offense with other gang members, White (Hated by Many), Baker (Crips and

Hated by Many), and Babers (Crips and Hated by Many). Templeton testified that just a few

minutes before the assault, Appellant approached Crips members, Babers and Baker, and said

they needed to “violate” someone who did not have Crip knowledge. The group excluded

Templeton from the remainder of the conversation because he was not a Crip. After the

conversation concluded, Appellant, Babers, and Baker went inside and moments later the fight

2
Appellant’s entire sufficiency argument, as it relates to Counts II and III, consists of three sentences: “As to
Counts II and Three, the State introduced evidence, over Appellant’s objections of at least two (2) extraneous
offenses - the Deadly Conduct offense of November 12, 2007 and the January 30, 2010 assault on Templeton - to
somehow establish intent and that Appellant was a member of the HBM street gang. Despite this prejudicial and
irrelevant evidence, the State failed to elicit any evidence that [Appellant] intentionally committed the act against
Rodriguez as a member of HBM, or as a member of a criminal street gang, or that Romero was even a member of
HBM or that HBM intended to commit this act. Moreover, this fight, over a girl, did not rise to the level of proving
the assault in this case constituted organized criminal activity.”

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started inside of the house. Taken in the light most favorable to the verdict, the evidence is

sufficient to permit a rational trier of fact to find beyond a reasonable doubt that Appellant

committed the aggravated assault of Rodriguez with intent to participate as a member of a

criminal street gang. Issue One is overruled.

EXTRANEOUS OFFENSES

In Issue Two, Appellant argues that the trial court abused its discretion by admitting

during the guilt-innocence stage of trial two extraneous offenses because he was not directly

involved in either offense. Appellant argues that the probative value of this evidence was

substantially outweighed by the danger of unfair prejudice. See TEX.R.EVID. 403.

Relevant Law and Standard of Review

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a

person to show action in conformity therewith. TEX.R.EVID. 404(b). But it may be admissible

for other purposes, such as proof of motive, opportunity, intent, preparation, plan, or knowledge.

Id. For evidence of other crimes to be admissible, it must be relevant for a purpose other than to

show the character of a person and that he acted in conformity with it. See TEX.R.EVID.

404(b).

Even when the extraneous offense evidence is relevant for a non-character conformity purpose, it

may be excluded if its probative value is substantially outweighed by the danger of unfair

prejudice. See TEX.R.EVID. 403. In conducting a Rule 403 balancing test, the trial court must

balance: (1) the inherent probative value of the evidence and (2) the State’s need for that

evidence, against any tendency of the evidence to (3) suggest decision on an improper basis, (4)

confuse or distract the jury from the main issues, or (5) be given undue weight by a jury that has

not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that

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presentation of the evidence will consume an inordinate amount of time or be needlessly

cumulative. See Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex.Crim.App. 2006).

We review the trial court’s admission of extraneous offense evidence for an abuse of

discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex.Crim.App. 2009); Prible v. State, 175

S.W.3d 724, 731 (Tex.Crim.App. 2005). If the trial court’s ruling is within the zone of

reasonable disagreement, there is no abuse of discretion. Prible, 175 S.W.3d at 731. A trial

court’s ruling on the admissibility of an extraneous offense is generally within this zone if the

evidence shows that (1) an extraneous transaction is relevant to a material, non-propensity issue,

and (2) the probative value of that evidence is not substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading of the jury. De La Paz, 279 S.W.3d at

344.

The 2007 Drive-by Shooting

Roynisha Vandiver, the sister of Antoine Baker, testified that in November of 2007, she

was “jumped” by several members of a rival gang, the Bloods, including Travell Gomez.

Vandiver and several other members of the Crips and HBM, including Appellant, Baker, and

White, went to confront them but Gomez and his brothers came out of the house carrying bats.

Vandiver’s group fled. Afterwards, Appellant and the others talked about getting a gun to

“handle business.” “Squeaky” Andre Harris gave Appellant a handgun. Appellant loaded it,

cocked it, wiped off his prints, and handed it to Baker. Appellant and Squeaky stayed at

Vandiver’s house while Vandiver, Baker, and two other individuals drove back to Travell

Gomez’s house. Baker got out of the car, fired three or more shots at the house, and then fled.

Vandiver was arrested a short time later.

We will begin by examining the probative value of the evidence and the State’s need for

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it. In connection with Counts 2 and 3, the State had the burden to prove beyond a reasonable

doubt that Appellant acted with intent to participate as a member of a criminal street gang when

he committed the offense of aggravated assault. To carry its burden, the State was required to

show that Appellant and his companions had a common identifying sign or symbol or an

identifiable leadership and they “continuously or regularly associate in the commission of

criminal activities.” TEX.PENAL CODE ANN. § 71.01(d). Consequently, evidence of

Appellant’s gang membership and some extraneous offenses would be not only relevant, but

essential to meet the State’s burden of proof. See Hernandez v. State, 52 S.W.3d 268, 282

(Tex.App.--Corpus Christi 2001, no pet.)(evidence of defendant’s gang-related activities was

admissible to prove defendant was member of criminal street gang and regularly engaged in

criminal activity, as required for conviction of engaging in organized criminal activity).

Appellant argues that the evidence does not have any probative value because he was not directly

involved in the drive-by shooting. In Jackson v. State, 314 S.W.3d 118 (Tex.App.--Houston [1st

Dist.] 2010, no pet.), the First Court of Appeals addressed the admissibility of gang-related

extraneous offense evidence in a prosecution for organized criminal activity. The court of

appeals noted that specific evidence regarding prior offenses can be probative of the defendant’s

intent to participate in organized criminal activity provided that the evidence shows the

defendant was “involved” in the prior offenses. Id., 314 S.W.3d at 127-28. The court held that

evidence of two prior gang-related offenses was not probative of the defendant’s intent because

he was not involved in the prior offenses. Id. at 128. In this case, there is evidence showing that

Appellant acted as a party in the 2007 drive-by shooting in that he participated in the discussions

about getting a gun to use against the rival gang members, and after Harris gave them the gun,

Appellant loaded it, cocked it, wiped off his fingerprints, and handed it to Baker. This certainly

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constitutes some evidence, if believed by the jury, that Appellant acted with intent to promote or

assist the commission of the offense, and he directed, encouraged, aided, or attempted to aid

Baker’s commission of the offense. We conclude that the evidence is probative of Appellant’s

intent to participate as a member of a criminal street gang.

The State had a considerable need for the extraneous offense evidence because it was

required to prove that Appellant committed the aggravated assault with intent to participate as a

member of a criminal street gang. The intent element was hotly contested at trial because

Appellant asserted that the aggravated assault and murder of Rodriguez was not gang-related at

all but was simply an argument over a woman that escalated into a fight. Vandiver’s testimony

showed that the Crips and HBM members had previously assaulted someone who the gang

members believed had wronged one of the gang members. It was the State’s theory that the gang

members assaulted Rodriguez in retaliation for him disrespecting White by interfering with his

advances on Aileen Favela. With respect to the tendency of the evidence to suggest decision on

an improper basis, the trial court instructed the jury that it could not consider the extraneous

offenses unless it found beyond a reasonable doubt that he participated in the extraneous

offenses, and even then, it could consider the evidence only in determining whether Appellant

intended to participate as a member of a criminal street gang as alleged in Counts II and III of the

indictment. We presume the jury followed the instructions of the trial court. See Kirsch v. State,

306 S.W.3d 738, 748 (Tex.Crim.App. 2010). The presumption is rebuttable, but the appellant

must rebut the presumption by pointing to evidence that the jury failed to follow the trial court’s

instructions. Thrift v. State, 176 S.W.3d 221, 224 (Tex.Crim.App. 2005). Appellant has failed to

rebut the presumption. There is no evidence in the record from which it can be concluded that

the extraneous offenses would confuse or distract the jury from the main issues or that the jury

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would give the evidence undue weight. Finally, Appellant contends that the presentation of the

evidence took a “substantial amount of time.” The State’s case-in-chief began on February 1,

2010 and the parties gave their closing arguments on February 10, 2010. The guilt-innocence

phase of trial, not including the defense’s witnesses, voir dire or closing arguments, is recorded

on seven volumes of the reporter’s record and consists of approximately 1,492 pages.

Vandiver’s direct examination about the extraneous offense is contained on nineteen pages of the

reporter’s record. Defense counsel engaged in a detailed cross-examination of Vandiver but it

did not focus exclusively on the extraneous offense. The trial court could have concluded that

Vandiver’s testimony, in the context of the entire trial, consumed a relatively small amount of

time and was not cumulative. The trial court acted within its discretion by concluding that the

probative value of the extraneous offense was not substantially outweighed by the danger of

unfair prejudice.

Retaliatory Assault of Templeton

The State presented evidence that Appellant, while in jail, spoke to Shaka King and gave

him the names of prospective witnesses. Appellant instructed King to tell those witnesses that he

had not done anything. In another telephone call, Appellant said that he knew who had snitched

on him because he had seen the videotaped statements. After the jury had been selected,

members of HBM assaulted James Templeton, a co-defendant who had given a videotaped

statement. Templeton suffered serious injuries during the assault, including fractures of the jaw,

cheek, and orbital socket. One of the people who participated in the assault of Templeton told

him some guys wanted to “beat [his] ass” for snitching on Marcus White and “everyone else.”

Templeton testified that he had been warned by HBM members to not testify in any of these

cases, but Appellant had not personally warned him.

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 While the evidence of Appellant’s involvement in the assault on Templeton is not

overwhelming, Appellant’s statement that he knew who had snitched on him because he had

seen the videotaped statements and his instructions to King to tell the witnesses that he had not

done anything, when combined with the warnings Templeton had been given to not snitch,

permit an inference that Appellant encouraged the gang members to assault Templeton. This

evidence has probative value because it shows that the gang members retaliate against a person

who engages in conduct displeasing to the gang by assaulting that person. Appellant argues that

the State did not need the evidence because it had other evidence tending to prove Appellant’s

connection to the gang. The evidence was not admitted to show Appellant’s connection to the

gang but to prove that Appellant committed the aggravated assault of Rodriguez with intent to

participate as a member of a criminal street gang.

As already discussed, the trial court instructed the jury that it could not consider the

extraneous offenses unless it found beyond a reasonable doubt that Appellant participated in the

extraneous offenses, and even then, it could consider the evidence only in determining whether

Appellant intended to participate as a member of a criminal street gang as alleged in Counts II

and III of the indictment. Appellant has failed to rebut the presumption that the jury followed the

trial court’s instructions. See Kirsch, 306 S.W.3d at 748; Thrift, 176 S.W.3d at 224. Further,

there is no evidence that the admission of this extraneous offense would confuse or distract the

jury from the main issues or that the jury would give the evidence undue weight. Appellant

argues that the presentation of this evidence took a substantial amount of time but Templeton’s

direct examination testimony about the extraneous offense consisted of only twenty-one pages of

a lengthy trial record. We conclude that the trial court did not abuse its discretion by admitting

the extraneous offense evidence related to the gang members’ retaliatory assault on Templeton.

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Issue Two is overruled. Having overruled both issues, we affirm the judgment of the trial court.

September 5, 2012 ________________________________________________
ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

(Do Not Publish)

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