Demuntra Rashard Green v. State ( 2015 )

AFFIRM; and Opinion Filed November 3, 2015.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-01264-CR
DEMUNTRA RASHARD GREEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-1356459-N
MEMORANDUM OPINION
Before Justices Evans, Whitehill and Schenck
Opinion by Justice Schenck
Demuntra Rashard Green appeals his conviction for the murder of Vasile Cartojan,
challenging the legal sufficiency of the evidence and the admission of evidence of his possible
gang affiliation. We affirm his conviction. Because all issues are settled in law, we issue this
memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
On the evening of May 19, 2013, Vasile Cartojan was shot and killed outside his
townhouse located in northeast Dallas. Prior to the shooting, Cartojan and his girlfriend Kai
Kannapas were relaxing on his patio. While they were on the patio, Kannapas noticed someone
backing Cartojan’s silver BMS out of its carport. She alerted Cartojan to this fact, and he ran out
to the alley. Shortly thereafter, Kannapas heard a pop noise, and then Cartojan cried out to her,
“Call 911; I’ve been shot.” Kannapas retrieved her phone and called 911. At the direction of the
911 operator, Kannapas performed CPR on Cartojan as she awaited emergency responders.
Cartojan did not survive. His cause of death was a gunshot wound that entered his chest and
went into his abdomen, perforating the diaphragm, liver, stomach, and aorta.
During the course of their investigation, police officers recovered Cartojan’s car and
collected as additional evidence a sandal, a pair of sunglasses, cigarettes, a black bag containing
eight small baggies containing marijuana, and a “brown-looking cigarette.” DNA left on the
items would prove of value in the ensuing investigation.
The homicide detective assigned to the case distributed flyers at a nearby apartment
complex asking for information related to Cartojan’s death. The apartment complex was the
scene of a significant fire during the early morning hours on the day after Cartojan’s death.
Tabroderick Washington, one of the residents of the apartments, whose apartment was
completely destroyed, agreed to speak with the detective about his encounter with appellant and
others.
Washington told the detective that during the afternoon of the day of the fire, he took his
dogs to a friend’s apartment in the same complex with the intent of asking her to look after them.
A number of people were at the apartment including appellant, who is known as “Tubs;” Ryan
Norris, known as “Spud;” and Jaquincey Bush, known as “Quincy.” Washington heard everyone
at the apartment talking but did not initially pay attention to what they were saying. He noticed,
however, that Bush “looked like he was sad, kind of scared a little bit,” and like he had been
crying. Washington heard appellant say something along the lines of “that nigga didn’t want to
give me the keys or the car.” Washington saw appellant, Norris, and Bush leave the apartment in
a silver BMW.
Based on information from Washington and other witnesses, appellant was identified as
one of three suspects in the murder of Cartojan. A warrant issued for his arrest and he was
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charged with capital murder. Appellant’s DNA profile was consistent with the DNA found on
two swabbings of the items collected during the investigation.
At trial, the State presented testimony from Cartojan’s sister Eugenia Anghel, witnesses
Kannapas and Washington, officers involved in the investigation and the collection of evidence,
a forensic pathologist, and a forensic biologist. Appellant elected not to testify during the guilt-
innocence phase of the trial, and the defense rested at the conclusion of the State’s case. The
jury found appellant guilty of murder.
Both parties presented evidence during the punishment phase. The State called
Cartojan’s sister and girlfriend to testify about the impact Cartojan’s murder has had on them and
Cartojan’s family. In addition, the State called Detective Barry Nelson to testify about the gang-
related tattoos on appellant’s body. He testified that Four Deuce is a gang from south Dallas—a
Crips gang. He explained that tattoos have great significance in gang cultures at present and
testified regarding his familiarity with gang culture and the significance of certain tattoos. He
viewed pictures of appellant’s tattoos and concluded, based upon his extensive experience with
gangs, that appellant was a member of the “Four Deuce” criminal street gang. Of significance to
Detective Nelson were the following tattoos: a “South Dallas” tattoo on appellant’s face (south
Dallas is the location of the Four Deuce gang); a tattoo of an address in south Dallas where
members of the Four Deuce gang hang out; a “42” tattoo (symbolizing the “Four Deuce” gang);
a “licc squad” tattoo on the side of appellant’s neck; 1 and two Star of David tattoos (a known
symbol of the Crips gang). Detective Nelson described the Four Deuce gang’s criminal activity
as involving every crime in the penal code, including robbery and murder.
1
Hitting a lick means to rob someone. Crips use the spelling “licc” rather than “lick” to avoid putting c-k together as it apparently is
understood to mean “Crip Killer.”
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Appellant’s mother, a family friend, and a friend’s mother testified for the defense.
Appellant’s mother testified that appellant’s “42” tattoo referred to the bus stop in the
neighborhood where he grew up. She also testified that appellant came to her sister’s house on
May 20, 2013, saying “I’m sorry, I didn’t mean to do it,” which she later figured out referred to
this offense. The other witnesses for the defense testified appellant took good care of his family
and was a good student. The jury sentenced appellant to 45 years’ confinement and a $10,000
fine.
DISCUSSION
SUFFICIENCY OF THE EVIDENCE
In his first issue, appellant challenges the legal sufficiency of the evidence to support his
conviction for murder. More particularly, appellant claims the evidence is insufficient to prove
beyond a reasonable doubt he acted with the requisite culpable mental state to support a murder
conviction.
STANDARD OF REVIEW
When conducting a legal-sufficiency review, a court must ask whether “any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 318–19 (1979). In so doing, we assess the evidence “in the
light most favorable to the prosecution.” Id. This same standard applies equally to
circumstantial and direct evidence. Burden v. State, 55 S.W.3d 608, 613 (Tex. Crim. App.
2001).
APPLICABLE LAW
A person commits the offense of murder if he intentionally or knowingly causes the death
of an individual. TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011). A person acts intentionally
when he has a conscious objective or desire to cause the result of his conduct. Id. § 6.03(a). A
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person acts knowingly when he is aware that his conduct is reasonably certain to cause the result.
Id. § 6.03(b). Proof of a requisite culpable mental state is almost always proved by
circumstantial evidence. See Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991).
THE EVIDENCE
Appellant claims his statements to the investigating detective, which were introduced into
evidence at trial, conclusively establish he did not intentionally or knowingly kill Cartojan. The
statements upon which appellant relies are he reacted to Cartojan hitting him by grabbing the gun
in his waistband when he thought he was falling to the ground, the gun discharged once, and he
did not know if he had shot Cartojan.
The jury is the exclusive judge of the credibility of the witnesses and the weight to be
given to their testimony. See Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984).
The jury was free to reject all or any part of appellant’s account of the events. See id; Dumas v.
State, 812 S.W.2d 611, 615 (Tex. App.—Dallas 1991, pet. ref'd). Which they apparently did.
We now look to the remainder of the evidence and the relevant case-law to determine
whether the jury could have found appellant acted intentionally or knowingly in causing
Cartojan’s death. Intent to commit murder may be shown by the use of a deadly weapon per se.
Gamblin v. State, 476 S.W.2d 18, 19-20 (Tex. Crim. App. 1972). Appellant admits to drawing
and firing the pistol. A pistol is a deadly weapon per se. Id. When a deadly weapon is fired at
close range and death results, the law presumes an intent to kill. Stills v. State, 492 S.W.2d 478
(Tex. Crim. App. 1973). The evidence shows Cartojan ran out to the alley after he and Kannapas
discovered someone was trying to steal his car. Kannapas heard a pop shortly thereafter. She
did not hear any arguing or struggle before the gun fired, but she heard Cartojan say, “I’ve been
shot” after she heard the pop. Appellant was the individual who shot Cartojan, and he shot him
at close range. This evidence is sufficient to support a finding appellant acted with the requisite
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culpable mental state to support his conviction of murder. Accordingly, we overrule appellant’s
first issue.
IDENTIFICATION OF APPELLANT AS A GANG MEMBER
In his second issue, appellant argues the trial court abused its discretion in admitting
evidence of gang membership, affiliation, or association during the punishment phase of trial
because he was not properly identified as a gang member under article 61.02 of the Texas Code
of Criminal Procedure. For the reasons set forth herein, we do not agree with appellant.
At the outset, we note article 61.02 does not control whether evidence concerning gang
affiliation is admissible. That provision governs the creation of “an intelligence database for the
purpose of investigating or prosecuting the criminal activities of criminal combinations or
criminal street gangs.” TEX. CODE CRIM. PROC. ANN. art. 61.02 (West Supp. 2014); Garcia v.
State, 239 S.W.3d 862, 866 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). Appellant was
not investigated for, tried for, or convicted of a gang-related crime. The restrictions outlined in
article 61.02, including the existence of two identifications of the individual being a criminal
street gang member in cases where there has not been a judgment of participation in a criminal
street gang or a self-admission of gang membership during a judicial proceeding, apply only to
the collection of gang-related information for the database, not to the admissibility of gang-
related information during the punishment phase of a trial. See id. Notwithstanding this fact, the
State satisfied at least two of the identification criteria set forth in article 61.02. 2
During the punishment phase of trial, the State presented testimony from Detective
Nelson, a member of the U.S. Marshal’s task force and the Dallas Police Department gang unit.
He explained that he had been in the gang unit for seventeen years and that he was the North
2
More particularly, the State presented evidence of appellant’s criminal street gang tattoos and association with a known gang member, as
well as documentation of appellant as a member of Four Deuce with the Dallas County Juvenile Department.
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Director of the Texas Gang Investigative Association. Detective Nelson testified that appellant
was not a documented gang member with the Dallas Police Department, but he was documented
with the Dallas County Juvenile Department as a member of “Four Deuce.” Detective Nelson
further testified about appellant’s extensive tattoos and their gang-related significance,
specifically a “South Dallas” tattoo on his face and a tattoo of a street address located in south
Dallas where members of the Four Deuce gang hang out, a tattoo stating “Licc squad,” referring
to “a group of men, a group of guys who get together, and their whole purpose is to hit licks,
commit robberies, commit felonies,” two Star of David tattoos, which he knew to be a symbol of
Crip gangs, and a “42” tattoo, which was the “actual name of the gang in South Dallas.”
Detective Nelson also testified that Ryan Norris, a person with whom appellant is associated, is a
documented gang member with the Dallas Police Department. Based on his observations and
experience, Detective Nelson testified that appellant “belong[ed] to the criminal street gang 4
Deuce.” He further testified that the gang had “done everything from murder to kidnapping to
robbery . . . narcotics, they have done it.”
Detective Nelson’s expert-opinion testimony that certain of appellant’s tattoos had
distinctive meanings and were common in the Four Deuce gang supplied sound evidence of
appellant’s gang membership. See Garcia, 239 S.W.3d at 867 (gang tattoos alone were
sufficient evidence of gang membership, despite Garcia’s denial of membership); Horton v.
State, No. 14–10–00253–CR, 2001 WL 742654, at *3 (Tex. App.—Houston [14th Dist.] March
3, 2011, pet. dism'd) (Squyres’ expert testimony that certain of appellant’s tattoos were common
to members of the Five Deuce Hoover Crips provided sound evidence of appellant’s gang
membership); Cabrera v. State, No. 05–05–00450–CR, 2006 WL 952410, *2 (Tex. App.—
Dallas Mar. 30, 2006, pet. ref’d) (testimony from police officer that distinctive notches shaved
into defendant’s eyebrows were common among members of certain gangs, testimony from
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defendant’s friend’s mother that defendant talked about getting a teardrop tattoo, which had gang
meaning that tattooed person had killed someone, and testimony that defendant associated with
gang members, was enough to show gang membership). Accordingly, we overrule appellant’s
second issue.
GANG INVOLVEMENT EVIDENCE
In his third issue, citing rule 404’s restricted use of other crimes and wrongs evidence to
prove character or act in conformance therewith, appellant asserts that the opinion testimony of
Detective Nelson should have been excluded either because it lacked relevance, or any probative
value it had was substantially outweighed by the danger of unfair prejudice. We disagree with
both assertions.
Appellant’s reliance on rule 404 is misplaced. Article 37.07 of the code of criminal
procedure controls the admission of evidence at the punishment phase and expressly allows
evidence of the defendant’s character and other bad acts, notwithstanding rule 404’s restrictions.
TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1). As a general rule, evidence of a defendant’s
gang affiliation and the violent activities of that gang are relevant and admissible at the
punishment phase to show the defendant’s character. Beasley v. State, 902 S.W.2d 452, 456
(Tex. Crim. App. 1995); Jackson v. State, Nos. 05–13–00579–CR & 05–13–00580-CR, 2014
WL Tex. App. LEXIS 3955171, at *3 (Tex. App.—Dallas Aug. 14, 2014, no pet.) (mem. op.).
The evidence need not link the accused to the bad acts or misconduct generally engaged in by
gang members, so long as the fact finder is (1) provided with evidence of the defendant’s gang
membership, (2) provided with evidence of character and reputation of the gang, (3) not required
to determine if the defendant committed the bad acts or misconduct, and (4) asked only to
consider reputation or character of the accused. See id. at 457. Evidence of the types of
activities the gang is engage in is not restricted to the particular crime for which the defendant is
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found guilty. It is essential for the jury to know the types of activities the gang generally
engages in so that they can determine if the defendant’s gang membership is a positive or
negative aspect of his character, and subsequently his character as a whole. Broadnax v. State,
No. AP–76207, 2011 WL 6225399, at *15 (Tex. Crim. App. Dec. 14, 2011).
Through Detective Nelson’s testimony, the State established evidence of appellant’s gang
membership, evidence of the activities of the gang generally, and evidence of the character and
reputation of the gang. The State did not ask Detective Nelson for evidence linking the appellant
to specific bad acts or misconduct, nor did the State ask the jury to consider anything beyond the
appellant’s reputation or character in light of his association with the gang. Thus, the State
successfully fulfilled the Beasley requirements for admitting evidence of the appellant’s gang
membership, and we find that Detective Nelson’s testimony was, indeed, relevant. See Beasley,
902 S.W.2d at 456.
Having determined that evidence of the appellant’s gang membership was relevant, we
are still left to determine whether its probative value outweighed its prejudicial effect. Rule 403
favors the admission of relevant evidence and carries a presumption that relevant evidence will
be more probative than prejudicial. Williams v. State, 958 S.W.2d 186, 196 (Tex. Crim. App.
1997). “The term ‘probative value’ refers to the inherent probative force of an item of
evidence—that is, how strongly it serves to make more or less probable the existence of a fact of
consequence to the litigation—coupled with the proponent’s need for that item of evidence.”
Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). “ ‘Unfair prejudice’ refers to a
tendency to suggest decision on an improper basis, commonly, though not necessarily, an
emotional one.” Id. at 880. It is only when a clear disparity exists between the degree of unfair
prejudice of the offered evidence and its probative value that Rule 403 is applicable. Davis v.
State, 313 S.W.3d 317, 331 (Tex. Crim. App. 2010).
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Evidence of the appellant’s gang membership was obviously unfavorable to the appellant,
but it was not unfairly prejudicial. The State’s gang evidence was narrowly tailored to the
purpose allowed by article 37.07. It consisted of only nineteen pages of testimony of Detective
Nelson and photos of the appellant’s tattoos. In addition to Detective Nelson, the State called
Cartojan’s sister and girlfriend who testified about the devastating effect Cartojan’s murder has
had on them and Cartojan’s family. The jury sentenced appellant to forty-five years’
confinement when the punishment range permitted a sentence of ninety-nine years or life. Under
these circumstances, the gang evidence was not so unfairly prejudicial that there was a clear
disparity between the degree of the prejudice and its probative value. Accordingly, the trial court
did not abuse its discretion in admitting evidence of appellant’s affiliation with the “Four Deuce”
gang and evidence of the activities of the gang. See Jackson, 2014 WL 3955171, at *4 (“trial
judge did not abuse his discretion in admitting expert testimony on gang evidence and
appellant’s tattoos”); Stewart v. State, 995 S.W.2d 251, 256 (Tex. App.—Houston [14th Dis.]
1999, no pet.) (trial court did not abuse its discretion in admitting lyrics in defendant’s notebook
that were of a violent nature as character and reputation evidence at the punishment stage). We
overrule appellant’s third issue.
CONCLUSION
Having resolved all of appellant’s issues against him, we affirm the trial court’s
judgment.
/David J. Schenck/
DO NOT PUBLISH DAVID J. SCHENCK
TEX. R. APP. P. 47 JUSTICE
141264F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DEMUNTRA RASHARD GREEN, On Appeal from the 195th Judicial District
Appellant Court, Dallas County, Texas
Trial Court Cause No. F-1356459-N.
No. 05-14-01264-CR V. Opinion delivered by Justice Schenck.
Justices Evans and Whitehill participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 3rd day of November, 2015.
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