PD-1014-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 8/31/2015 6:23:45 PM
Accepted 9/1/2015 12:46:05 PM
ABEL ACOSTA
ORAL ARGUMENT REQUESTED CLERK
NO. PD-1014-15
IN THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
SITTING AT AUSTIN, TEXAS
STEVEN GOODE,
Petitioner,
VS.
THE STATE OF TEXAS
Respondent
On Petition for Discretionary Review
To the Court of Appeals Fifth
Supreme Judicial District
Cause No. 05-14-00651-CR
PETITION SEEKING DISCRETIONARY REVIEW
James W. Huggler
State Bar No. 00795437
100 E. Ferguson, Suite 805
Tyler, Texas 75702
Telephone: 903-593-2400 September 1, 2015
Facsimile: 903-593-3830
jhugglerlaw@sbcglobal.net
ATTORNEY FOR PETITIONER
IDENTITY OF PARTIES
Trial Court Judge: Dennis Jones, Presiding
County Court at Law Number One
Kaufman County, Texas
Appellant/Petitioner: Steven Goode
TDCJ#01929962
Michael Unit
2664 FM 2054
Tennessee Colony, Texas 75886
Appellant’s Nolan White
Trial Counsel: 690 W. Dallas
Canton, Texas 75103
Appellant’s Counsel Russ Henrichs
on Direct Appeal: PO Box 190983
Dallas, Texas 75219
Appellant’s Counsel James Huggler
on Petition Seeking 100 E. Ferguson, Suite 805
Discretionary Review:Tyler, Texas 75702
Appellee/Respondent: State of Texas
Kaufman County Criminal District Attorney’s
Office
State’s Phillip Williams
Trial Counsel: Shelton Gibbs
Kaufman County District Attorney’s Office
100 W. Mulberry, 2nd Floor
Kaufman, Texas 75142
i
State’s Sue Korioth
Appellate Counsel: Erleigh Wiley
Kaufman County District Attorney’s Office
100 W. Mulberry, 2nd Floor
Kaufman, Texas 75142
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . 2
GROUNDS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
What are the permissible limits to the State offering
evidence of gang membership when that evidence does not
further an element of the offense or is simply character
evidence?
REASONS FOR GRANTING REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . 3
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARGUMENTS AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. Reasons for Granting Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
B. Analysis and Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
APPENDIX A - Opinion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4
INDEX OF AUTHORITIES
CASES
Canales v. State, 98 S.W.3d 690, 697 (Tex. Crim. App. 2003). . . . . . . 4, 6
Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006). . . . . . . . 5
Goode v. State, No. 05-14-00651-CR, Tex. App. – Dallas,
July 1, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Jackson v. State, 314 S.W.3d 118 (Tex. App. – Houston
[1st Dist.] 2010, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 6
Medrano v. State, No. AP-75320, 2008 Tex. Crim. App.
Unpub. LEXIS 871 (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . . . . . . 4
RULES
TEX. R. APP. P. ANN. 9.4 (West 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
TEX. R. APP. P. ANN. 66.3(a) (West 2014). . . . . . . . . . . . . . . . . . . . . . . . . 3
TEX. R. APP. P. ANN. 66.3(b) (West 2014). . . . . . . . . . . . . . . . . . . . . . . . . 3
TEX. R. APP. P. ANN. 66.3(c) (West 2014). . . . . . . . . . . . . . . . . . . . . . . . . 3
TEX. R. EVID. 403. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5
PD-1014-15
STEVEN GOODE, § IN THE COURT OF
PETITIONER §
§
VS. § CRIMINAL APPEALS
§
THE STATE OF TEXAS, §
APPELLEE § AUSTIN, TEXAS
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Steven Goode, Petitioner and Defendant in the trial court,
respectfully submits this his Petition for Discretionary Review
complaining of the ruling and opinion by the Court of Appeals for the Fifth
Supreme Judicial District, and would show the Court as follows:
STATEMENT REGARDING ORAL ARGUMENT
In the event this Court grants this petition, Petitioner requests the
Court to grant oral argument herein so that all matters may be clarified
and any questions presented by the briefs of the parties may be addressed
in a proper manner.
1
STATEMENT OF THE CASE
Appellant was indicted in Kaufman County with the felony offense
of possession with intent to deliver methamphetamine. Goode v. State,
No. 05-14-00651-CR, 2015 Tex. App. LEXIS 6741 (Tex. App. – Dallas, July
1, 2015). A jury convicted Mr. Goose and the trial court sentenced him to
thirty years confinement. Notice of appeal was timely filed. The Court of
Appeals affirmed the trial court’s sentence in an unpublished opinion, and
this petition follows. The Petition is timely filed on or before August 31,
2015 following proper extensions granted by this Court.
STATEMENT OF PROCEDURAL HISTORY
The Fifth Court of Appeals issued an opinion not designated for
publication in number 05-14-00651-CR on July 1, 2015. No motion for
rehearing was filed. On August 6, 2015, a Motion to Extend Time to File
Petition for Discretionary Review was filed. That Motion was granted and
the time to file a petition for discretionary review was extended until
August 31, 2015.
2
GROUND FOR REVIEW
What are the permissible limits to the State offering evidence
of gang membership when that evidence does not further an
element of the offense or is simply character evidence?
REASONS FOR GRANTING REVIEW
The decision of the Court of Appeals conflicts with another court of
appeals decision on the same issue. TEX. R. APP. P. ANN. 66.3(a) (West
2014).
The decision of the Court of Appeals decided an important question
of state or federal law that has not been, but should be, settled by the
Court of Criminal Appeals. Tex. R. App. P. Ann. 66.3(b) (West 2014).
The decision of the Court of Appeals conflicts with an applicable
decision of the Court of Criminal Appeals on an important question of
state law. TEX. R. APP. PROC. ANN. 66.3( c)(West 2014).
STATEMENT OF FACTS
Steven Goode was indicted and charged with the offense of
possession of methamphetamine with the intent to deliver in an amount
3
between four and two hundred grams. The State’s case rested on the
testimony of informant Carole Blevins, who had the methamphetamine
hidden in the crotch of her pants Goode at 2. The law enforcement officers
who investigated the case also relied on the fact that Mr. Goode was a
member of a criminal street gang, specifically the Aryan Brotherhood of
Texas. Goode at 3. The trial court found the enhancement paragraph
true and sentenced Mr. Goode to thirty years confinement. Further
discussion of relevant facts is included below.
ARGUMENTS AND AUTHORITIES
A. Reasons for Granting Review
The opinion issued in this case conflicts with the opinion from the
First Court of Appeals on the same issue. Jackson v. State, 314 S.W.3d
118 (Tex. App. – Houston [1st Dist.] 2010, no pet.).
The opinion also conflicts with this Court’s holdings limiting gang
membership testimony if it provides some relevant link to the commission
of the offense. Medrano v. State, No. AP-75320, 2008 Tex. Crim. App.
Unpub. LEXIS 871 (Tex. Crim. App. 2008) and Canales v. State, 98
S.W.3d 690, 697 (Tex. Crim. App. 2003).
4
B. Analysis and Application
Almost the surest way to ensure a conviction is to include an
allegation that an accused is a member of a criminal street gang. In this
case, there was a running objection to the evidence that Mr. Goode was a
member of a gang, and the State relied extensivley on the Aryan
Brotherhood of Texas, its operating methods, and his involvement with
that group. Goode at 8-9. The jury was left with general information
about the Aryan Brotherhood of Texas and their structure and operating
methods, and left to speculate as to Mr. Goode’s involvement.
The Court of Appeals erred in finding this evidence was properly
admitted because the indictment alleged that Mr. Goode was a member
of a criminal street gang. Goode at 10. The allegation however does not
end the inquiry. Jackson 118 S.W.3d at 125. Even relevant evidence can
be excluded. TEX. R. EVID. 403; Gigliobianco v. State, 210 S.W.3d 637,
641-42 (Tex. Crim. App. 2006). The Court also erred in determining that
contraband inside the pants of another person somehow fits the operating
patterns of a street gang and is thus admissible. Goode at 10.
This analysis used below stands in contrast to the Houston court in
Jackson. Jackson involved the admissibility of evidence of prior crimes
5
committed by a criminal street gang without any evidence as to the
defendant’s participation in or knowledge of those offenses. Jackson at
125-26.
The analysis used below also contradicts the requirement that gang
testimony must have some underlying value to assist the trier of fact.
Canales, 98 S.W.3d at 697.
CONCLUSION
Under all circumstances, the Court of Appeals erred in affirming the
trial court’s decision. This court should grant discretionary review, allow
complete briefing, and, upon such review, reverse the Court of Appeals
and remand the case to the Court of Appeals for further consideration.
6
PRAYER
WHEREFORE, Petitioner prays the Court to grant discretionary
review and, upon such review, to reverse the judgment of the Court of
Appeals; and for such other and further relief to which he may show
himself justly entitled.
Respectfully submitted,
/s/ James Huggler
James W. Huggler
State Bar No. 00795437
100 E. Ferguson, Suite 805
Tyler, Texas 75702
Telephone: 903-593-2400
Facsimile: 903-593-3830
jhugglerlaw@sbcglobal.net
ATTORNEY FOR PETITIONER
7
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Petition
has been forwarded to the Kaufman County District Attorney’s Office ,
and on the State Prosecuting Attorney through the State of Texas
Electronic Filing System on this the 31st day of August, 2015 at the
addresses listed below
/s/ James Huggler
James W. Huggler
Erleigh Wiley
Sue Korioth
Kaufman County District Attorney’s Office
100 W. Mulberry, 2nd Floor
Kaufman, Texas 75142
Lisa McMinn
State Prosecuting Attorney
PO Box 12405
Austin, Texas 78711
CERTIFICATE OF COMPLIANCE
I certify that this Petition complies with Tex. R. App. P. 9.4, specifically
using 14 point Century font and contains 1,529 words as counted by
Corel WordPerfect version x6.
/s/ James Huggler
James W. Huggler, Jr.
8
NO. PD-1014-15
IN THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS SITTING AT
AUSTIN, TEXAS
STEVEN GOODE,
Petitioner
VS.
THE STATE OF TEXAS,
Respondent
On Petition for Discretionary Review
To the Court of Appeals Fifth
Supreme Judicial District
Cause No. 05-14-00651-CR
APPENDIX
9
STEVEN MICHAEL GOODE, Appellant
v.
THE STATE OF TEXAS, Appellee
No. 05-14-00651-CR
COURT OF APPEALS OF TEXAS, FIFTH DISTRICT,
DALLAS
2015 Tex. App. LEXIS 6741
July 1, 2015, Opinion Filed
NOTICE: PLEASE CONSULT THE OPINION
TEXAS RULES OF APPELLATE
PROCEDURE FOR CITATION OF MEMORANDUM OPINION
UNPUBLISHED OPINIONS. Opinion by Justice Whitehill
PRIOR HISTORY: [*1] On Appeal A jury convicted Steven Michael
from the County Court At Law No. 1, Goode of possession with the intent to
Kaufman County. Texas Trial Court deliver four grams or more but less than
Cause No. 30921CC. 200 grams of methamphetamine. The trial
court found the enhancement paragraph
true, found that Goode committed the
COUNSEL: For Appellants: Russ offense as part of a criminal street gang,
Henrichs, Dallas, TX. and sentenced Goode to thirty years'
imprisonment.
For Appellees: Sue Korioth, Erleigh In three issues, Goode argues that the:
Norville Wiley, Kaufman, TX. (i) trial court erred in denying his motion
to suppress; (ii) trial court erred in
JUDGES: Before Justices Francis, Lang- admitting gang affiliation evidence during
Miers, and Whitehill. Opinion by Justice the guilt-innocence phase because it was
Whitehill. impermissible character-conformity
evidence; and (iii) evidence is insufficient
OPINION BY: BILL WHITEHILL to support his conviction. Concluding that
his arguments lack merit, we affirm the
10
trial court's judgment. the truck. When Goode consented to a
search of the truck, Schumann found half
I. Background of a joint in Blevins's cigarette pack.
Texas State Trooper Devin Gonzalez Blevins, who was later identified as an
was a member of a task force informant, also had methamphetamine
investigating the Aryan Brotherhood of hidden in the crotch of her pants. Blevins
Texas (ABT) and ABT's and Goode were both arrested, and Goode
methamphetamine distribution. In was charged with possession with intent
connection with the investigation, Goode, to deliver methamphetamine in an amount
and another ABT member, Rusty Duke, of [*3] four grams or more but less than
[*2] were under surveillance. 200 grams, enhanced by a prior felony
conviction.
A fellow task force member, Officer The trial court denied Goode's motion
Steve Lair, told Trooper Gonzalez that to suppress the drug evidence. Before
Goode was en route to pick up some trial, the State amended the indictment to
methamphetamine at a house Duke used include an allegation that Goode
as a "Trap House."1 Duke was later committed the offense "as a member of a
observed at the Trap House. Goode's criminal street gang." The trial court
truck was also seen there, with a female denied Goode's motion to quash the
passenger in the front seat. When Goode amended indictment.
left the Trap House, Gonzalez told The case was tried to a jury. During
Trooper Schumann, who was on routine trial, the State introduced evidence of
traffic patrol, that Goode's truck might be Goode's ABT membership and of ABT's
carrying narcotics. Gonzalez asked structure and operating methods. Defense
Schumann to make a traffic stop if he counsel objected that the evidence
could. constituted impermissible character
evidence and was more prejudicial than
1 Gonzalez explained that a "Trap probative. The trial court overruled the
House" is a residence used solely for objections and allowed the defense a
the distribution of narcotics. running objection to that evidence.
Schumann saw Goode's truck going The jury found Goode guilty. The trial
east on the highway and followed it. court found the enhancement paragraph
Schumann initiated a stop after he saw the true, found that Goode committed the
truck make an unsafe lane change. offense as part of a criminal street gang,
Schumann asked Goode and his female and sentenced Goode to thirty years'
passenger, Carole Blevins, to get out of imprisonment.
11
evidence in the light most favorable to the
II. Analysis ruling. See State v. Kelly, 204 S.W.3d 808,
818 (Tex. Crim. App. 2006).
A. Issue No. 1: Did the Trial Court Err We first note that Goode's briefing on
in Denying the Motion to Suppress? this issue is inadequate. We locate
Goode's first issue argues that the trial Goode's argument that Gonzalez lacked
court erroneously denied his motion to "sufficient credible information to pass on
suppress because the "stop and detention to Officer Schumann," and could not
of [his] truck was impermissible and did "reliably and justifiably provide [*5]
[*4] not provide [the officer] a legitimate information to Officer Schumann to make
basis for making the stop and subsequent the traffic stop in the first place," in the
arrest," and because Gonzalez did not last paragraph under the issue. The
have "sufficient credible information to briefing is fifteen pages long with ten of
pass on to Officer Schumann." the fifteen pages consisting of direct
We review a trial court's ruling on a quotes of testimony given at the
motion to suppress evidence under a suppression hearing. Over four pages are
bifurcated standard of review. Turrubiate quotes of general case law. As to the
v. State, 399 S.W.3d 147, 150 (Tex. Crim. traffic violation, Goode states that he
App. 2013). We give almost total challenged whether a traffic violation was
deference to the trial court's findings of committed at the hearing on the motion to
historical fact that are supported by the suppress, and "the points raised by
record and its application of the law to defense counsel are re-urged here."
facts if the resolution of those questions Because Goode fails to proffer any
turns on an evaluation of credibility and analysis or argument to support this
demeanor. Amador v. State, 221 S.W.3d argument on appeal, we reject his
666, 673 (Tex. Crim. App. 2007). We complaint. See TEX. R. APP. P. 38.1(i);
review de novo the trial court's McCarthy v. State, 65 S.W.3d 47, 49 n. 2
application of the law to the facts when (Tex. Crim. App. 2001).
the issue does not turn on credibility and Regardless, an officer may stop and
demeanor. Id. The trial court is the detain a person if the officer has
exclusive trier of fact and judge of the reasonable suspicion that a traffic
credibility of the witnesses and the weight violation is in progress or has been
to be given to their testimony at the committed. McVickers v. State, 874
suppression hearing. State v. Ross, 32 S.W.2d 662, 664 (Tex. Crim. App. 1993).
S.W.3d 853, 855 (Tex. Crim. App. 2000). An objectively valid stop is not unlawful
In reviewing a trial court's ruling on a just because the detaining officer has
motion to suppress, we must view the some ulterior motive for making the stop.
12
Crittenden v. State, 899 S.W.2d 668, 674 behavior. Consequently, Schumann
(Tex. Crim. App. 1995). Ordinarily, a initiated a traffic stop. When he did so, he
violation of a traffic law committed in also noticed that the truck's third brake
view of a police officer is sufficient light was out.
authority for a traffic stop. See Lemmons We conclude that although the issue is
v. State, 133 S.W.3d 751, 756 (Tex. App.-- inadequately briefed, the traffic stop was
Fort Worth 2004, pet. ref'd). based on a reasonable suspicion that
In findings of fact and conclusions of Goode had committed a traffic violation.
law, the trial court found that, when he Therefore, the trial [*7] court did not err
stopped the vehicle, Trooper Schumann in denying the motion to suppress.
had reasonable suspicion [*6] to believe
that Goode had violated transportation B. Issue No. 3: Was The Evidence
code § 545.053(a). See TEX. TRANSP. Sufficient to Prove that Goode
CODE ANN. § 545.053(a) (West 2011) Possessed Methamphetamine with the
(passing). The court also found, in Intent to Deliver?
pertinent part, that when he stopped the Goode's third issue challenges the
vehicle, Trooper Schumann had sufficiency of the evidence to support his
reasonable suspicion to believe that conviction. Although the stated issue
Goode was violating transportation code mentions both the possession and intent to
section 547.3215. See TEX. TRANSP. CODE deliver elements, his argument discusses
ANN. § 547.3215 (West 2011) (reflective only the possession element. According to
devices). Goode, the evidence does not establish
Schumann's testimony is consistent that he possessed narcotics at the time of
with the trial court's findings. Schumann his arrest.
testified that he followed the truck as it When an appellant challenges the
traveled east on the highway in the right sufficiency of the evidence to support a
lane. Schumann then saw the truck move conviction, we review all the evidence in
into the left lane, pass a vehicle that had the light most favorable to the verdict to
entered the highway, and move back into determine whether any rational trier of
the right lane "before it was safely-- fact could have found the essential
coming clear of the passed vehicle." elements of the offense beyond a
Schumann said that this constituted reasonable doubt. Wise v. State, 364
passing unsafely because it did not allow S.W.3d 900, 903 (Tex. Crim. App. 2012).
sufficient distance between the truck and We co ns ider b o th d i r e c t a n d
the passed vehicle, which caused the circumstantial evidence and all reasonable
driver of the passed vehicle to have to inferences that may be drawn from the
slow down or change his driving
13
evidence in making our determination. 2006). But presence or proximity,
Clayton v. State, 235 S.W.3d 772, 778 combined wi t h o t h er direct or
(Tex. Crim. App. 2007). If the evidence is circumstantial evidence, may establish
conflicting, we "presume that the possession beyond a reasonable doubt. Id.
factfinder resolved the conflicts in favor Blevins, the informant, was with
of the prosecution and defer to that Goode when they were stopped by the
determination." Wise, 364 S.W.3d at 903 police. She testified about (i) her prior
(quoting Jackson v. Virginia, 443 U.S. knowledge of ABT member Rusty Duke
307, 326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 and his methamphetamine business, (ii)
(1979)). Goode's statements to her about Duke
To prove possession, the State must being in that business, (iii) her
show that the accused: (1) exercised care, conversations with Goode in which he
custody, [*8] control, or management said that they were going to meet Duke
over the contraband, and (2) knew the and pick up methamphetamine for Goode
substance was contraband. TEX. HEALTH & to front for Duke, (iv) how she had
SAFETY CODE ANN. §§ 481.002(38), fronted drugs for Duke before, and [*9]
481.112 (West 2010 & Supp. 2014); (v) her telling Goode about Duke's
Poindexter v. State, 153 S.W.3d 402, 406 methamphetamine operations. Blevins
(Tex. Crim. App. 2005). To meet this was a female ABT "feather wood," which
standard, the State must show that is a woman who is married to or the
Goode's connection with the girlfriend of an ABT member and is
methamphetamine was more than loosely affiliated with that organization.
fortuitous. Poindexter, 153 S.W.3d at 406. She testified that, as an ABT feather
Control over a controlled substance need wood, she had no choice but to go along
not be exclusive, but can be jointly on the trip. She also said that on the way
exercised by more than one person. See to Duke's house she and Goode smoked
McGoldrick v. State, 682 S.W.2d 573, 578 part of a joint, which Goode then told her
(Tex. Crim. App. 1985); Taylor v. State, to put in her cigarette pack. Half of the
106 S.W.3d 827, 831 (Tex. App.--Dallas joint remained there when they were
2003, no pet.). If the defendant was not in pulled over.
exclusive possession of the controlled Blevins described the trip to Duke's
substance, the State is required to present Trap House to pick up the
evidence linking him to it. See Taylor, methamphetamine, Goode's meeting with
106 S.W.3d at 830-31. Mere presence at Duke right before she and Goode got in
the contraband's location is not sufficient his white Ford truck, and how he placed
to establish possession. Evans v. State, the drugs on the truck's console as they
202 S.W.3d 158, 162 (Tex. Crim. App. drove off in Goode's truck.
14
Blevins explained that, as the police Blevins testified that Goode was the
light came on, Goode gave her the one who set up the deal with Duke. None
methamphetamine and said, "you need to of Goode's letters asked Blevins where
put this on you." Blevins understood that she had gotten the methamphetamine.
to mean she needed to "crotch it," so she Blevins also said that the task force would
put the drugs down her pants. When the not have been aware of the drug
officer pulled them over, he separated transaction between Goode and Duke had
them from each other. While the officer it not been for [*11] her.
was talking to Goode, the drugs were Blevins's testimony was sufficient to
"down in [Blevins's] pants." link Goode to the narcotics and to show
When the officer searched the truck that he exercised care, custody, and
and found the joint, Blevins [*10] told control and knew that it was contraband.
him it was hers. The officer then asked Goode acknowledges Blevins's testimony,
Blevins if she had anything else illegal on but argues it was not corroborated and
her. Blevins replied, "No." The officer that Blevins's criminal history "casts
then stated, "I know you have something doubt upon her testimony." As the sole
on you." So Blevins retrieved the judge of Blevins's credibility and the
methamphetamine from her pants. When weight to be given her testimony,
she did so, she asked that the officer not however, the jury was free to believe her
tell Goode, because he would "kill [her] if or not. See Brooks v. State, 323 S.W.3d
he found out." 893, 899 (Tex. Crim. App. 2010).
Goode and Blevins were arrested and We reject Goode's arguments
taken to jail, where they remained for a regarding the accomplice witness rule
few months. During that time, several (see TEX. CODE CRIM. PROC. Art. 38.14)
letters were exchanged between them. because again, he relies on pages of direct
Many of these letters were admitted into quotes of testimony from the trial, cites
evidence. In one letter, Goode asked general case law supporting his argument
Blevins not to be mad at him. Blevins and fails to analyze the issue. See TEX. R.
understood that to mean his asking her to APP. P. 38.1(i); WorldPeace v. Comm'n
carry the drugs. According to Blevins, at for Lawyer Discipline, 183 S.W.3d 451,
that point Goode thought she had told the 460 (Tex. App.--Houston [14th Dist.]
police the drugs were hers. When Goode 2005, pet. denied) (holding that failure to
wrote that he would make it up to her, offer argument, citations to record, or
Blevins understood that to mean that citation to authority waives issue on
Goode thought she would be taking the appeal). Moreover, had the issue been
blame for the methamphetamine. preserved and properly briefed, sufficient
15
evidence was offered to corroborate reverse an evidentiary ruling if the ruling
Blevins' testimony by connecting Goode is within the zone of reasonable
to the offense. disagreement. Id. For the reasons
For the above reasons, we decide discussed below, we conclude that the
Goode's third issue against him. trial court did not abuse its discretion in
admitting the gang related evidence
C. Issue No. 2: Was Evidence of during the guilt-innocence phase.
Goode's Aryan Brotherhood Affiliation We again point out that under this
Admissible In the Guilt-Innocence issue, Goode's [*13] briefing is eighteen
Phase? pages long. He direct-quotes trial
Goode's second issue argues that [*12] testimony and argument for sixteen of the
the trial court erred in admitting evidence eighteen pages. Another page is general,
of his gang affiliation during the guilt- direct-quote case law that includes the
innocence phase because the evidence rule 403 balancing factors. We are given
was impermissible character-conformity a summary argument and directed to the
evidence, the prejudicial effect of which applicable rule and general law but are
outweighed its probative value. See TEX. not provided any analysis or argument to
R. EVID. 403, 404(b). The record contains support this argument on appeal. We find
extensive evidence regarding ABT, its this issue inadequately briefed. See TEX.
operating methods, and appellant's R. APP. P. 38.1(i); McCarthy v. State, 65
involvement with that gang. Goode S.W.3d 47, 49 n. 2 (Tex. Crim. App.
unsuccessfully objected to that evidence 2001).
when offered through Officer Lair but Regardless, Rule 404(b) generally
was granted a running objection. The trial prohibits "Evidence of other crimes,
court, however, sustained specific wrongs, or acts . . . to show action in
objections to detailed evidence regarding conformity therewith." Rule 404(b)
ABT's structure. The admitted ABT applies to third-party acts as well as the
evidence about which Goode complains defendant's acts. Castaldo v. State, 78
consists primarily of general information S.W.3d 345, 348-49 (Tex. Crim. App.
regarding ABT's structure and specific 2002).
information regarding the events leading Rule 404(b), however, provides that
to Goode's arrest. evidence of other crimes, wrongs or acts
We review a trial court's evidentiary may be "admissible for other purposes
rulings under an abuse of discretion such as proof of motive, opportunity,
standard. Torres v. State, 71 S.W.3d 758, intent, preparation, plan, knowledge,
760 (Tex. Crim. App. 2002). We will not identity, or absence of mistake or accident
16
. . . ." TEX. R. EVID. 404(b). The gang related evidence in the guilt-
admissibility of evidence offered for these innocence phase for several reasons.
purposes will almost always involve a First, the evidence was relevant
balancing under Rule 403's substantial because the amended indictment alleges
prejudice analysis. Castaldo, 78 S.W.3d. that Goode committed the offense as a
at 350. And, member of a criminal street gang and the
State must prove the indictment's
The weight of the prejudice allegations beyond a reasonable doubt.
to the defendant may be Moore v. State, 531 S.W.2d 140, 142 (Tex.
different if the extraneous acts Crim. App. 1976); Butler v. State, 429
are a third party's rather than S.W.2d 497, 502 (Tex. Crim. App. 1968).
his own, keeping in mind that Although the trial court denied Goode's
the prejudice is greater if the motion to quash this allegation in the
third party's acts [*14] in indictment, he does not complain about
some way prove the the denial of the motion to quash or the
defendant's character. validity of the allegation in the indictment
The danger of prejudice to that he was a member of a criminal street
the defendant is usually gang. The evidence regarding ABT's
highest when evidence of the origins, structure, and operating methods
defendant's extraneous acts is [*15] was directly relevant to prove that
offered to prove that the Goode's participation in the ABT and that
defendant acted the same way the ABT was a criminal street gang as
in the offense on trial. The alleged in the indictment.
danger of prejudice may be Second, the evidence was admissible
much lower when evidence of to prove that Goode possessed the
a third party's extraneous acts methamphetamine, which was not found
is offered. If the third party's on Goode or in Goode's vehicle but was
acts are in some way probative in the pants or crotch area of the
of the defendant's character as passenger. As discussed above, the truck
well as the third party's, the passenger, Blevins, was an informant and
danger of prejudice may be an ABT feather wood working with a
somewhere in between. Task Force Officer with the Department
of Homeland Security's National Gang
Unit, Lair, who was investigating ABT's
Id. drug sales operations. Blevins was in
We conclude the trial court did not frequent contact with Lair on the day in
abuse its discretion in admitting ABT question, was giving Lair a stream of
17
information regarding the events as they its discretion in admitting the gang
happened, and was the information source affiliation evidence in the guilt-innocence
leading up to Goode's arrest. She gave phase.
detailed testimony about the ABT's We thus decide Goode's second issue
involvement in the transaction, Goode's against him.
knowing possession of the
methamphetamine, and his intent to III. Conclusion
deliver the drugs. She also testified that,
consistent with ABT practices, she was Having resolved all of Goode's issues
included on the trip so that she could against him, we affirm the trial court's
"crotch" the drugs if Goode got pulled judgment.
over. "Crotching" is an ABT practice of Do Not Publish
having a woman place illegal drugs in her TEX. R. APP. P. 47
pants, because most officers [*16] are
/s/ Bill Whitehill
men and not allowed to search that area.
Blevins was the source that directly led to BILL WHITEHILL
the arrest. JUSTICE
For these reasons, we conclude that
evidence regarding the ABT was relevant JUDGMENT
to proving the allegations in the Based on the Court's opinion of this
indictment, the existence of, and date, the judgment of the trial court is
appellant's knowing participation in, a AFFIRMED.
gang related crime, and Goode's
possession of the methamphetamine. We Judgment entered July 1, 2015.
conclude that the trial court did not abuse
18