David Longoria v. State

NO. 07-08-0111-CR
NO. 07-08-0112-CR
NO. 07-08-0113-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
DECEMBER 30, 2008
______________________________
DAVID LONGORIA, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NOS. 2004-407,301, 2004-407,304, 2004-407,306;
HON. BRADLEY UNDERWOOD, PRESIDING
_______________________________
Before CAMPBELL, HANCOCK and PIRTLE, JJ.
Memorandum Opinion
Appellant, David Longoria, appeals the sentences imposed for four convictions of
delivery of a controlled substance, cocaine. Appellant challenges the admission of
evidence relating to his membership in a gang that was elicited during a sentencing hearing
that was had before the bench. We affirm.
By one issue, appellant contends that the trial court erred in admitting evidence of
appellant’s membership in a prison gang during the sentencing hearing. Appellant
acknowledges that he did not object to the evidence nor did he request a limiting
instruction. However, appellant contends that the admission of this evidence, without
proper limitation, rendered the sentencing hearing fundamentally unfair and asks this Court
to reverse the judgment as to sentencing and remand for a new sentencing hearing.
The failure to object to the examination of witnesses or to the admission of evidence
is not preserved for appellate review absent a timely and specific objection raised during
trial and any error in the admission of the evidence is waived by the failure to object. See
TEX . R. APP. P. 33.1(a); Fancher v. State, 659 S.W.2d 836, 839 (Tex.Crim.App. 1983);
Crocker v. State, 573 S.W.2d 190, 205 (Tex.Crim.App. 1978); Salas v. State, 486 S.W.2d
956, 957 (Tex.Crim.App. 1972). Further, this is true even though the error may concern
a constitutional right of the defendant. See Muniz v. State, 851 S.W.2d 238, 255-56
(Tex.Crim.App. 1993); Gauldin v. State, 683 S.W.2d 411, 413 (Tex.Crim.App. 1984);
Russell v. State, 665 S.W.2d 771, 777-78 (Tex.Crim.App. 1983); Shannon v. State, 567
S.W.2d 510, 514 (Tex.Crim.App. 1978).
Appellant contends that the evidence that he was a member of a prison gang was
so inflammatory and of such minimal relevance that its admission was fundamental error
because it denied him a fair sentencing hearing. Appellant relies on Dawson v. Delaware,
503 U.S. 159, 166-67, 112 S. Ct. 1093, 117 L. Ed. 2d 309 (1992), as establishing that
evidence of gang membership without evidence that the gang has engaged in unlawful
acts or has endorsed such acts is not relevant to any legitimate sentencing consideration
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and is a violation of a defendant’s First Amendment rights. While appellant may be right
in his assertion that the evidence complained of in this case was objectionable under
Dawson, we note that the defendant in Dawson timely asserted objections to the admission
of the evidence on the grounds that the admission of the evidence would violate his First
and Fourteenth Amendment rights. See id. at 162. Appellant has cited no authority that
the admission of gang membership during sentencing is fundamental error for which no
objection at trial is required. Further, we have found no such authority.
Therefore, we conclude that appellant failed to preserve the complained of error for
our review and we, therefore, overrule appellant’s sole issue and affirm the judgment of the
trial court.
Mackey K. Hancock
Justice
Do not publish.
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