Justin Jerell Williams v. State

Affirmed and Memorandum Opinion filed November 16, 2017.
In The
Fourteenth Court of Appeals
NO. 14-16-00827-CR
JUSTIN JERELL WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 1502845
MEMORANDUM OPINION
Appellant Justin Jerell Williams appeals his murder conviction, contending
that the trial court reversibly erred in explaining the State’s burden of proof during
voir dire and in admitting gang activity evidence unrelated to appellant during the
punishment phase of the trial. We affirm.
BACKGROUND
Appellant was charged by indictment with the felony offense of murder. The
indictment alleged that on or about December 4, 2014, appellant caused the death
of the complainant, Arnold Eugene Radford, by shooting him with a deadly
weapon, namely a firearm. Appellant pleaded “not guilty” to the charge.
At trial, the jury heard evidence that Radford and appellant were long-time
acquaintances who had lived across the street from each other for many years.
Radford was a drug dealer who regularly sold drugs at a Texaco Station on Scott
Street in Houston. After appellant and Radford got into an argument about money,
appellant got a gun, went to the Texaco Station, and shot Radford in the head and
torso, causing his death. A jury found appellant guilty of murder and, after finding
one enhancement paragraph true, assessed punishment at 50 years in prison and a
$10,000.00 fine. Appellant does not challenge the sufficiency of the evidence
supporting the jury’s finding of guilt.
I. The Trial Court’s Comments on Reasonable Doubt
In his first issue, appellant contends that the trial judge’s voir dire
explanation of the State’s burden to prove each element of the charged offense
beyond a reasonable doubt left individual jurors to decide for themselves what the
standard requires.
During voir dire, the trial court explained to the jury panel the State’s burden
to prove the defendant’s guilt beyond a reasonable doubt:
Now, beyond a reasonable doubt is great, but our Legislature
and our laws do not define it for us. So beyond a reasonable doubt is
what is individually in each one of us, and you would have to decide
what it means to you. And that is where you are. Now, it’s not beyond
all doubt. We know that. And the State has to prove each side [sic]
and every allegation by that burden of proof of beyond a reasonable
doubt.
So in essence, what we are asking you to do is sit here, listen to
the evidence, and decide from the evidence whether the State has
2
proved their case or not. And that is what I ask you to remember. An
in that regard, our Legislature, not defining it—well, they did try at
one time to define it, but now it’s not. It’s up to each individual. So
you are the exclusive judges of the facts to be proven and the
credibility to be given the witnesses.
What that in essence means is you have to judge each witness
as they come up here and decide whether you believe all of what they
say, some of what they say, or none of what they say. And you decide
that. And once you’ve done that, you would decide what—whether
their evidence is true or not true. And that is what you are called upon
to do when you are selected on a jury.
Now—excuse me—in any given case, the State has the burden
of proving this. Now, until you have decided whether you believe all
of their testimony, some of their testimony, or none of their testimony,
since you are the finders of whether the witnesses are telling the truth
or not, then you decide this case.
Appellant did not object to the trial judge’s explanation. The written jury charge
authorized the jury to find appellant guilty of murder “[i]f you find from the
evidence beyond a reasonable doubt” that he committed the offense, and instructed
that “[u]nless you so find from the evidence beyond a reasonable doubt, or if you
have a reasonable doubt thereof, you will acquit the defendant and say by your
verdict ‘Not Guilty.’” At the conclusion of the trial, the jury found appellant guilty.
Appellant complains that the judge’s comments “gave the critical concept of
proof beyond a reasonable doubt twelve different ‘masters,’ each empowered by
the judge to decide for himself or herself what the words mean.” Consequently,
appellant argues, the judge “gave the jurors the power to decide what the law is,
rather than receiving guidance on the law from the court.”1
1
Appellant suggests that it would be preferable to return to including a written definition
of “beyond a reasonable doubt” as the Court of Criminal Appeals once required in Geesa v.
State, 820 S.W.2d 154, 162 (Tex. Crim. App. 1991), but later overruled in Paulson v. State, 28
S.W.3d 570, 573 (Tex. Crim. App. 2000) (“We find that the better practice is to give no
definition of reasonable doubt at all to the jury.”). As an intermediate appellate court, we lack the
3
Appellant acknowledges that he did not object to the judge’s comments, but
contends that the instruction amounted to structural error requiring reversal of the
judgment without a harm analysis. See Sullivan v. Louisiana, 508 U.S. 275, 281–
82 (1993) (holding that constitutionally deficient reasonable-doubt instruction
constituted structural error requiring reversal). Alternatively, appellant contends
that the instruction constituted fundamental error to be reviewed for egregious
harm. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on
reh’g) (holding that if no proper objection is made to charge error at trial, appellant
is entitled to reversal only if the error caused egregious harm that deprived
appellant of a fair and impartial trial); see also Tex. R. Evid. 103(e) (“In criminal
cases, a court may take notice of a fundamental error affecting a substantial right,
even if the claim of error was not properly preserved.”). The Court of Criminal
Appeals, while not deciding whether appellate courts may review a voir dire
comment absent an objection, has explained that a trial court’s comments do not
constitute fundamental error unless they rise to “such a level as to bear on the
presumption of innocence or vitiate the impartiality of the jury.” See Jasper v.
State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001).
Appellant argues that the trial judge’s explanation “easily allowed any juror
to apply a standard which fell short of what is required to satisfy due process.” For
example, appellant complains that the judge’s explanation could lead a juror to
conclude that a preponderance standard would be sufficient, since the trial judge
“said the juror could make the phrase mean whatever the juror believed it to
mean.” Appellant also asserts that defense counsel reinforced this constitutional
authority to overrule an opinion of the Court of Criminal Appeals. State v. DeLay, 208 S.W.3d
603, 607 (Tex. App.—Austin 2006) (citations omitted), aff’d sub. nom., State v. Colyandro, 233
S.W.3d 870 (Tex. Crim. App. 2007). In any event, there is no general constitutional prohibition
on a trial court defining reasonable doubt. Victor v. Nebraska, 511 U.S. 1, 5 (1994); Paulson, 28
S.W.3d at 573.
4
error by echoing the judge’s words during closing argument.2
This court considered similar comments given by the trial judge in Latson v.
State, 440 S.W.3d 119 (Tex. App.—Houston [14th Dist.] 2013, no pet.), a case not
cited or distinguished by appellant. In Latson, the judge explained the State’s
burden of proof during voir dire this way:
Now, I’ve told you that the State has the burden of proof beyond a
reasonable doubt. Any idea what beyond a reasonable doubt is? Good,
because you know what, the Courts haven’t defined what beyond a
reasonable doubt is. Several years ago the Court of Appeals tried to
come up with a definition that lawyers could use in criminal cases,
and they ultimately decided that it wasn’t appropriate for them to
define beyond a reasonable doubt. Because beyond a reasonable doubt
is that kind of proof that proves to you individually kind of in your
heart, in your mind that the Defendant is guilty; and it’s impossible to
really define that. I can tell you what it isn’t; it’s not proof beyond all
possible doubt . . . .
Id. at 121. The appellant argued that the trial judge’s comments tainted the
presumption of innocence and thus amounted to fundamental error. Id. This court
disagreed, noting that the comments did not indicate that the appellant was guilty,
apply the burden of proof to the facts of the case, shift the burden of proving
appellant’s guilt from the State to the appellant, or instruct the jury to follow their
hearts and ignore the law. Id. Consequently, the court held that the trial court’s
comments did not constitute fundamental error. Id. at 122.
In reaching its conclusion, the Latson court relied in part on Haro v. State,
371 S.W.3d 262, 266 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). See
2
We note that even though defense counsel stated that the determination of reasonable
doubt was up to each individual juror, counsel also went on to explain that reasonable doubt was
“a really high level” because “you’re taking somebody’s life away if you convict them and send
them to prison.” Defense counsel also detailed the kinds of evidence in the case that might cause
a juror to have a reasonable doubt.
5
Latson, 440 S.W.3d at 121. Haro is particularly instructive because in that case,
our sister court addressed a complaint—much like appellant’s—that the trial
judge’s explanation of the meaning of “reasonable doubt” during voir dire
amounted to constitutional or fundamental error because the trial judge
emphasized that reasonable doubt was what the individual juror believed it to be.
See 371 S.W.3d at 264–65. The trial judge’s comments in Haro included the
following:
Now, I mentioned beyond a reasonable doubt a while ago, and that’s
the standard of proof we employ here in the criminal courts. Some of
you have been on civil juries before; the standard there is different.
Instead of going through a civic lesson on every standard of proof,
let’s just deal with the one that we're going to be dealing with and
that’s beyond a reasonable doubt.
Now, when I first started coming down here to the courthouse back in
1982, . . . we had no definition for reasonable doubt . . . and we told
jurors . . . that reasonable doubt is what the individual juror believes it
to be. Well, we rocked along just fine that way.
And then the Court . . . of Criminal Appeals decided no, we do have a
definition for beyond a reasonable doubt and here it is. And so we
[used] that definition for several years. . . . Well, they got to looking at
it again and said, you know what, I think we had it right the first time.
So, we are back to beyond a reasonable doubt being what the
individual jurors believe[ ] it to be. It’s not beyond all possible doubt,
and the Charge will tell you that, it’s beyond a reasonable doubt. So, I
can’t give you a definition. I can give you some suggestions, kind of
get you thinking about it and really tell you what some folks on juries
before have told me they thought beyond a reasonable doubt meant to
them. But ultimately, you, individually, g[e]t to decide what beyond a
reasonable doubt means to you. I’ve heard people say that it is an
intellectual exercise based on reason, common sense and logic. I’ve
heard people say it’s something you know in your heart. You listen to
everything. You weigh it all. You determine what you believe based
on your experience, and you filter it through the law the Court gives
you.
I’ve heard other people say it’s something you know in your gut, after
6
considering everything brought to you, looking and seeing what’s
credible, what’s not, who has reason to fabricate, who does not. It’s
just something that you feel in your gut after listening to everything
clearly. Folks, I would submit to you that it’s probably a little bit of all
three; but you have to make that decision.
So, I’ve got two questions for you along these lines. First of all,
knowing yourself like no one else knows you, can you determine what
beyond a reasonable doubt means to you? Can you do that? Anyone
who cannot? All right. And will you hold the State to that burden as to
each and every element of the offense charged as the law says you
must? Can you do that? All right. Anyone who cannot? Fair enough.
Id. at 263–64 (alterations in original).
On appeal, the appellant in Haro complained that the trial court’s comments
amounted to fundamental error because (1) they conditioned the jury to believe
that the beyond-a-reasonable-doubt standard was whatever they thought, (2) they
diminished the standard by failing to distinguish it from lesser burdens of proof,
and (3) the trial court’s explanation left the impression that the jury “could have
relied on nothing more than a ‘gut feeling’ in deciding whether he was guilty.” Id.
at 264. The court rejected these arguments, explaining that under Texas law, “each
individual juror decides the amount of proof required to meet the threshold of
beyond a reasonable doubt.” Id. at 265 (citing Murphy v. State, 112 S.W.3d 592,
597 (Tex. Crim. App. 2003)). Thus, the court held that the appellant “waived error
by failing to object to the trial court’s comments on reasonable doubt because the
trial court’s comments do not rise to the level of fundamental error.” Id.Appellant asserts that the Haro court’s holding is “questionable” if the error
is of constitutional magnitude and structural, as he contends. Appellant points to
Cage v. Louisiana, in which the Supreme Court held that a reasonable-doubt
instruction in a death-penalty case was constitutionally deficient because a juror
could have understood the instruction to permit a finding of guilt on less than a
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reasonable doubt.3 See 498 U.S. 39, 41 (1990) (per curiam), disapproved of by
Estelle v. McGuire, 502 U.S. 62, 72 n.4 (1991). Subsequently, in Sullivan, the
Court concluded that a reasonable-doubt instruction “essentially identical” to the
unconstitutional instruction in Cage was structural error requiring reversal because
it deprived the defendant of the right to a jury verdict of guilt beyond a reasonable
doubt. See 508 U.S. at 280–282.
Appellant emphasizes that the standard of review applied in Cage was that
“a reasonable juror could have interpreted the instruction” in such a way as to lead
that juror to demand less from the prosecutor than was necessary. See 498 U.S. at
41. Appellant contends that, following Cage, “the right question to ask is how the
judge’s comments during voir dire may have affected the thinking of one or more
of the jurors,” and argues that in this case, the judge’s comments “invit[ed] up to
twelve different incorrect definitions.” But, in Estelle v. McGuire, the Court
disapproved of Cage’s articulation of the standard of review, holding that the
proper inquiry is whether, viewing the challenged instruction in the context of the
instructions as a whole and the trial record, there is a reasonable likelihood that the
jury applied the instruction in a way that violates the United States Constitution.
See 502 U.S. at 72 & n.4.
3
In Cage, the Court explained:
The charge did at one point instruct that to convict, guilt must be found beyond a
reasonable doubt; but it then equated a reasonable doubt with a “grave
uncertainty” and an “actual substantial doubt,” and stated that what was required
was a “moral certainty” that the defendant was guilty. It is plain to us that the
words “substantial” and “grave,” as they are commonly understood, suggest a
higher degree of doubt than is required for acquittal under the reasonable-doubt
standard. When those statements are then considered with the reference to “moral
certainty,” rather than evidentiary certainty, it becomes clear that a reasonable
juror could have interpreted the instruction to allow a finding of guilt based on a
degree of proof below that required by the Due Process Clause.
496 U.S. at 41.
8
On this record, we conclude that no reasonable likelihood exists that the jury
applied the trial court’s comments in a way that undermined appellant’s
constitutionally protected right to a finding of guilt beyond a reasonable doubt. As
an initial matter, the trial judge did not suggest that a juror could simply apply
whatever standard that juror might personally prefer. Instead, the trial judge
correctly explained that reasonable doubt is not “beyond all doubt,” but is a
standard that requires the State to prove every allegation beyond a reasonable
doubt as determined by the jury’s determination of the credibility of the witnesses’
testimony and the weight of the evidence. See Latson, 440 S.W.3d at 121–22;
Haro, 371 S.W.3d at 265–66; see also Woods v. State, 152 S.W.3d 105, 114 (Tex.
Crim. App. 2004) (holding that trial court did not err by instructing jury that State
is not required to prove guilt beyond all possible doubt); Marshall v. State, 312
S.W.3d 741, 743–45 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (holding
trial court’s voir dire comments did not rise to the level of fundamental error but
“simply explained the existing law with regard to reasonable doubt” and therefore
timely and specific objections were required to preserve appellant’s complaint for
appeal). And, unlike the instruction in Cage, the judge did not equate reasonable
doubt with “grave uncertainty,” “actual substantial doubt,” or “moral certainty.”
See Cage, 498 U.S. at 41.
Additionally, during voir dire the attorneys for the State and the defense
each discussed the meaning of beyond a reasonable doubt. The prosecutor
emphasized that the State was held “to a high burden” to prove its case beyond a
reasonable doubt, and defense counsel reiterated that the State’s burden was
“whatever it takes to convince you and how you feel in your mind and in your
heart.” Having reviewed the voir dire as a whole, the context of the trial court’s
remarks, and the record in its entirety, we cannot conclude that the trial court’s
9
comments concerning the State’s burden of proof beyond a reasonable doubt are
constitutionally deficient so as to constitute structural error, or so egregious that
they would constitute fundamental error that may be reviewed in absence of a
timely and specific objection at trial. We overrule appellant’s first issue.
II. Gang Evidence Admitted During Punishment Stage
In his second issue, appellant contends that the trial court erred in “admitting
a substantial amount of evidence concerning gang activity not related to the
appellant at the punishment phase of trial.” Appellant argues that the evidence fails
to satisfy the first prong of the Beasley four-prong test for admissibility of gang
activity not linked to the accused. See Beasley v. State, 902 S.W.2d 452 (Tex.
Crim. App. 1995).
We review a trial court’s decision to admit punishment evidence for abuse of
discretion. See Jessop v. State, 368 S.W.3d 653, 686 (Tex. App.—Austin 2012, no
pet.); Sierra v. State, 266 S.W.3d 72, 76 (Tex. App.—Houston [1st Dist.] 2008,
pet. ref’d). The trial court abuses its discretion only when its decision lies “outside
the zone of reasonable disagreement.” Jessop, 368 S.W.3d at 686.
During the punishment phase of trial, “evidence may be offered . . . as to any
matter the court deems relevant,” including evidence of the defendant’s reputation
or character. Tex. Code Crim. Proc. art. 37.07, § 3(a)(1). Evidence is relevant if it
has any tendency to make a fact more or less probable than it would be without the
evidence and the fact is of consequence in determining the action. See Tex. R.
Evid. 401. But, even relevant evidence otherwise admissible under article 37.07 is
subject to exclusion if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, misleading the jury, undue delay, or
the needless presentation of cumulative evidence. See Tex. R. Evid. 403; Ellison v.
State, 201 S.W.3d 714, 722 (Tex. Crim. App. 2006).
10
In Beasley v. State, the Court of Criminal Appeals held that evidence of a
defendant’s gang membership is relevant because it relates to character. 902
S.W.2d at 456. The court determined that membership information alone, however,
“may not be enough for the jury to make an informed decision of appellant’s
character,” reasoning that it was also “essential for the jury to know the types of
activities the gang generally engages in so that they can determine if his gang
membership is a positive or negative aspect of his character, and subsequently his
character as a whole.” Id. Only then could the jury fairly evaluate “how gang
membership reflects on the gang member’s character.” Id. Thus, the court held that
if the gang is involved in misconduct or illegal activity, it is not necessary to link
the defendant to bad acts so long as the factfinder is (1) provided with evidence of
the defendant’s gang membership, (2) provided with evidence of the gang’s
character and reputation, (3) not required to determine if the defendant committed
the bad acts or misconduct, and (4) only asked to consider the reputation or
character of the accused. Id. at 457.4
During the punishment phase, the State presented Rick Sepolio, an
investigator with the Harris County District Attorney’s Office, to testify
concerning gang activity in the area where Radford was killed. Appellant objected
to “all testimony concerning gangs and gang affiliation” on the grounds that it was
not relevant, or if relevant, the evidence was more prejudicial than probative under
Texas Rule of Evidence 403.5 The trial court overruled appellant’s objections and
4
As explained in Sierra, the Beasley court relied on an earlier version of the Texas Code
of Criminal Procedure that prohibited the admission of unadjudicated extraneous bad acts in the
punishment phase. See 266 S.W.3d at 79. The Sierra court held that under the revised Code,
article 37.07, § 3(a) permits evidence of gang affiliation to be introduced during punishment not
only as evidence of character or reputation, but also as evidence of a defendant’s extraneous
crimes or bad acts. See 266 S.W.3d at 79.
5
Appellant also objected to the admission of photographs of appellant’s tattoos on the
same grounds. On appeal, however, appellant does not complain about the trial court’s ruling
11
allowed him a running objection to Sepolio’s testimony.
On appeal, appellant argues that the State’s evidence fails to satisfy the first
prong of the Beasley test because much of the evidence was not linked to appellant
or related to his character. Because the Beasley standard was formulated to
determine whether gang evidence is admissible in the punishment phase as relevant
evidence of a defendant’s character, we conclude that appellant’s relevance
objection is sufficient to preserve error as to this issue. See Tex. R. App. P. 33.1;
Beasley, 902 S.W.2d at 455–56; cf. Orellana v. State, 489 S.W.3d 537, 547 (Tex.
App.—Houston [14th Dist.] 2016, pet. ref’d) (holding that appellant’s objection at
trial to admission of gang evidence on Rule 403 grounds did not preserve appellate
complaint that trial court should have excluded gang-related evidence as irrelevant
because it failed to link appellant sufficiently to gang).
Sepolio testified that prior to working at the District Attorney’s office, he
had worked on gang investigations as an officer with the Houston Police
Department. He explained that in 1989, as drive-by shootings, carjackings, and
other gang-related crime started to occur in southeast Houston, he obtained
permission to start a gang unit in the area including the 7000 block of Scott Street
and the Southlawn Apartments. Over time, he identified several gangs in the area,
including the Southlawn Posse and the Yellowstone Players. Sepolio testified that
the Southlawn Posse and the Yellowstone Players each satisfied law enforcement
criteria as a criminal street gang by consisting of three or more individuals with a
common identifier, such as tattoos, a bandana or other clothing of a certain color,
or committing crimes with a known, documented gang member. Sepolio stated that
when the Yellowstone Players first started, they would fight with the Southlawn
Posse, but they later declared a truce because the gangs were “mainly about
that the photographs were admissible.
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business, about making money.”
According to Sepolio, the area gangs eventually consolidated and began
calling themselves “Scott Block” instead of referring to a specific street or
neighborhood, although some also continued to claim their original gang
affiliations. Sepolio explained that the gang members regularly participated in the
commission of criminal activities, from graffiti to murder, and that the majority of
their criminal activities were pursued for the purpose of making money. The
gangs’ criminal activities included mainly narcotics, but also carjacking,
burglaries, robberies, and selling stolen credit cards.
Appellant complains that much of this “wide ranging portrayal of gang
activity in southeast Houston” was not shown to reflect on appellant’s character.
Appellant complains that the State presented no evidence that the gang activity
described in the 1980s and 1990s was relevant to any group in which appellant
participated; that some or all of the Southlawn Posse members had become part of
Scott Block “at the time when Radford and his protégés, possibly including
[appellant], were dealing drugs at the Texaco station”; or that the activities of the
Yellowstone Players had anything to do with appellant’s character.
We disagree that this evidence was not relevant evidence of appellant’s gang
membership. See Beasley, 902 S.W.2d at 456. Appellant acknowledges that
Sepolio affirmatively linked appellant to the Scott Block gang by appellant’s
“Scott Block” tattoo and the area in which he lived and would “hang out” with
others. Additionally, Sepolio opined that, based on his information and the tattoos
he saw on appellant, he believed that appellant was originally a member of the
Southlawn Posse. The State also presented to the jury several pictures of
appellant’s body, taken by Sepolio, which displayed several gang-related tattoos.
One picture of appellant’s face showed teardrops under his left eye and a dollar
13
sign by his right eye. Another showed dollar signs in several places on appellant’s
body, which Sepolio explained signified the importance of money to the gangs, as
did another tattoo displaying the letters “MOE,” which Sepolio explained stands
for “money over everything.”
The jury also heard evidence that in 2010, when appellant was fifteen years
old, he participated in an armed carjacking. Sepolio was assigned to do a follow-up
investigation of the offense after appellant was picked up in the stolen vehicle.
Sepolio presented photospreads to the victim, who identified appellant and another
person. The victim testified that one evening she had parked her car at an
apartment complex where her boyfriend lived, and as she walked to the apartment
“some guys” came up to her with guns pointed at her, threatening her and
demanding her car keys. She gave them her keys, and they drove away in her car
with her belongings. Appellant was later adjudicated delinquent on the offense of
aggravated robbery and committed to the Texas Youth Commission. Appellant was
then placed in the Giddings State School, a Texas Juvenile Justice Department
correctional facility.6
Sepolio’s testimony identified appellant as a gang member in the criminal
street gang known as Scott Block, a gang associated with the commission of
crimes ranging from graffiti to murder. He also identified the Scott Block as
responsible for narcotics dealing, carjackings, and theft-related crimes. Sepolio’s
testimony concerning the evolution of the gang culture in Southeast Houston
6
The evidence showed that appellant continued to engage in criminal and violent conduct
during incarceration. While at the Giddings State School, appellant was convicted of assault on a
public servant, harassing a public servant, and trespassing. Later, while incarcerated at the Harris
County Jail, appellant engaged in multiple disciplinary infractions, including assault, fighting,
and unauthorized contact with staff members. In one of the incidents, appellant resisted being
locked in his cell one night, became disruptive, and struck a detention officer in jaw, causing the
officer pain and requiring four stitches.
14
explained appellant’s association with both the Southlawn Posse and Scott Block,
and was relevant to the development of Scott Block’s reputation for violent and
illegal activities. Appellant’s conviction for a carjacking as a juvenile, Radford’s
murder, and evidence at trial that appellant engaged in selling illegal drugs, also
affiliated appellant with the same type of gang-related offenses. Based on this
evidence, the trial court did not abuse its discretion by admitting Sepolio’s
testimony during punishment because it demonstrated appellant’s membership in a
gang and the gang’s purpose and activities, as relevant to show appellant’s
character. See Beasley, 902 S.W.2d at 456–57; see also Tex. Code Crim. Proc. art.
37.07, § 3(a)(1); Orellana, 489 S.W.3d at 542 (explaining that Beasley holds that
gang affiliation evidence is admissible in the punishment phase of trial as evidence
of the defendant’s character and reputation, even if the evidence does not implicate
the defendant in the gang’s bad acts or misconduct, so long as Beasley’s four
factors are met). We overrule appellant’s second issue.
CONCLUSION
We overrule appellant’s issues and affirm the trial court’s judgment
/s/ Ken Wise
Justice
Panel consists of Justices Christopher, Brown, and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).
15