Pondexter v. State , 1996 Tex. Crim. App. LEXIS 213 ( 1996 )

KELLER, Judge,

concurring.

My first difficulty with the majority opinion is with regard to its treatment of point of error nine. I believe that the prosecutor’s voir dire notes are work product, and the State should not be required to turn voir dire notes over to the defense during a Batson hearing.

I also disagree with the majority’s analysis of the points of error dealing with evidence of gang membership. The majority says the evidence of gang membership in this case was not relevant. Gang membership may or may not be relevant during guilt-innocence. As is true with any other evidence, gang membership is relevant if it has any tendency to make the existence of any fact of consequence more probable or less probable than it would be without the evidence. Tex. R.Crim. Evid. 401. This determination must be made on a case-by-case basis.¹

In the instant case, the evidence of the discussions of which crip “had the heart” to kill the victim and to knock out the man at the gas station, and of the crip handshake after the murder, was relevant to show a possible motive for the murder of Martha Lennox. Certainly the evidence tends to make sense of evidence that is otherwise unaccountable: the co-defendant, after shooting the victim in the head, handed appellant the gun and appellant shot the victim after she had already been shot.

According to the majority, the State could have presented a clear and understandable case without the evidence — but surely that is not the test for relevance. Under the facts of this case, gang membership was not merely an incidental aspect of appellant’s life; it was part of the reason for the murder and it was part of the explanation for why the murder occurred as it did. Had the State been required to excise the gang-membership aspect of the murder, its case against appellant would have been less coherent and less believable.

Events do not occur in a vacuum. The jury has a right to have an offense placed in its proper setting so that all evidence may be realistically evaluated. Burks v. State, 876 S.W.2d 877, 900 (Tex.Crim.App.1994), citing Mann v. State, 718 S.W.2d 741, 743 (Tex.Crim.App.1986), cert. denied 481 U.S. 1007, 107 S.Ct. 1638, 95 L.Ed.2d 206 (1987). In a prosecution for capital murder where consideration of the behavior of the defendant is critical, the entire context of the offense showing his actions is vital. Id. In the instant case the testimony that indicated that Lennox’s murder was part of a gang undertaking allowed the jury to view the offense in the proper setting, the way it actually occurred. The trial court did not err in admitting this evidence.

j concur in the opinion of the Court.

WHITE, J., joins.

1 . In Anderson v. State, 901 S.W.2d 946 (Tex.Crim.App.1995) and Beasley v. State, 902 S.W.2d 452 (Tex.Crim.App.1995) we considered whether evidence of gang membership is admissible at punishment. The issue in this case concerns the admission of such evidence at guilt/innocence.