Marco Agundiz Cabrera v. State

IN THE
TENTH COURT OF APPEALS
No. 10-12-00095-CR
MARCO AGUNDIZ CABRERA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 85th District Court
Brazos County, Texas
Trial Court No. 10-03842-CRF-85
MEMORANDUM OPINION
Appellant Marco Agundiz Cabrera was found guilty by a jury of engaging in
organized criminal activity with respect to committing or attempting to commit
aggravated assault. The jury assessed a prison sentence of sixty years and a $10,000
fine. Raising one issue, Agundiz Cabrera appeals.
The offense of engaging in organized criminal activity is committed if a person
commits aggravated assault with the intent to establish, maintain, or participate in a
criminal street gang. TEX. PENAL CODE ANN. § 71.02(a)(1) (West Supp. 2013). A criminal
street gang “means three or more persons having a common identifying sign or symbol
or an identifiable leadership who continuously or regularly associate in the commission
of criminal activities.” Id. § 71.01(d) (West 2011).
To prove that Agundiz Cabrera was a member of a criminal street gang at the
time of the alleged aggravated assault, the State presented the testimony of Bryan Police
Officer Andrea Schooler, the gang intelligence officer for the Criminal Intelligence Unit
and a ten-year veteran of the Bryan Police Department. Schooler testified that, before
becoming the gang intelligence officer, she was a Bryan patrol officer for six years. She
was predominately assigned to a zone considered to have the highest volume of gang
activity and responded to numerous fights, drive-by shootings, and assaults that
involved gang members. She said that the Bryan Police Department maintains a gang
database and that when patrol officers learn that a crime is gang-related, they get that
information to the officers responsible for entering the information in the gang
database.
Schooler then was a member of a county-wide task force (the Special
Investigations Unit) for gangs, narcotics, and organized crime for two and a half years.
In that task force, she primarily focused on gang intelligence, had a gang database, and
received a “large number of hours of training in gangs and narcotics investigations.”
Next, in 2010, Schooler was assigned to the Criminal Intelligence Unit, where her
primary focus is on gangs. As the criminal intelligence officer on gangs, she maintains
the gang database, trains officers on gang recognition (signs and symbols) and gang
members, and supports other areas of law enforcement with criminal investigations
Cabrera v. State Page 2
involving gang members. And by talking with gang members, Schooler has learned the
internal structure and workings of gangs. Schooler testified at length about the many
gang training courses and conferences that she has attended to date, and they totaled
196 hours. She is a member of the Texas Gang Investigators Association.
Schooler said that, through her training, and experience, she has acquired
specialized knowledge relating to gangs and specifically the Latin Kings, the Sureños,
and the Vatos Locos. She has previously testified in Brazos County as an expert on
those gangs. Regarding the Latin Kings, Schooler testified that, on a local level from
2008 to the present, the Latin Kings had three or more persons grouped under that
name with identifiable signs and symbols; their primary colors are black and gold and a
five-point crown or star is used. The numbers 12 and 11 are very important because L
and K are the twelfth and eleventh letters in the alphabet, and the number 5 is also
important. Their hand signs include “amor de rey” (love of king) and the pitchfork sign
with the forks down, and because of the number 5’s importance, they also use the “five”
hand sign. Schooler said that street gang members carry “flags,” which is usually a
bandanna, and in the case of the Latin Kings, they will have a black or gold bandanna
or a black-and-gold bandanna. Necklaces are unique to the Latin Kings, and theirs has
five black and then five gold beads, alternating all the way around.
Schooler also testified that, based on her training and experience, the Latin Kings
are a known Brazos County criminal street gang that regularly associates in criminal
activities such as graffiti, property crimes, burglary, narcotics, assaults and aggravated
assaults, retaliation, and murder. The Latin Kings are the largest gang in Brazos
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County, and their rival gangs are the Sureños and the Vatos Locos. Schooler testified
that, for determining whether a person is a member of gang and to put the person in the
gang database, she goes by the criteria in Chapter 61 of the Code of Criminal Procedure.
See TEX. CODE CRIM. PROC. ANN. art. 61.02 (West Supp. 2013).
Before Schooler testified, Angelica Guzman testified and authenticated two
photographs (State’s Exhibits 11 and 12) as being taken on October 8, 2008. Guzman
said that she and Agundiz Cabrera were in those two photographs. Also testifying was
Terry Young, an investigator with the Brazos County Sherriff’s Office; he, like Schooler,
had been a member of the Special Investigations Unit where he focused primarily on
street gangs. Young said that on October 8, 2008, he and two other investigators were
conducting surveillance and taking photographs of persons at the funeral for Jose
Reyna, whom Schooler later said was a known member of the Latin Kings and had been
murdered. Young said that Agundiz Cabrera was at that funeral, and Young
authenticated four photographs (State’s Exhibits 7, 8, 9, and 10) that were taken at the
funeral. Agundiz Cabrera and others were in all of the photographs.
The trial court prohibited Schooler from testifying that Agundiz Cabrera was a
member of the Latin Kings because she did not have personal knowledge that he was a
member at the time of the underlying offense, but over Agundiz Cabrera’s
Confrontation objections, Schooler was allowed to identify other persons in the several
photographs as members of the Latin Kings because they were in the gang database.
For example, for State’s Exhibit 11, Schooler testified that, excluding Agundiz Cabrera,
all of the persons were members of the Latin Kings.
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In his sole issue, Agundiz Cabrera, citing Crawford v. Washington, 541 U.S. 36, 124
S. Ct. 1354, 158 L. Ed. 2d 177 (2004), asserts a Confrontation Clause violation because the
trial court allowed Schooler to testify over objection that other persons pictured with
Agundiz Cabrera and dressed similarly to him were gang members. Agundiz Cabrera
argues that the gang database is the result of hearsay information from many different
law enforcement officers and that Schooler lacked personal knowledge to testify that
those persons were gang members; instead, she relied on hearsay from other officers.
We review the trial court’s ruling admitting the evidence against a constitutional
objection under a bifurcated standard, giving deference to the trial court’s findings
regarding any pertinent historical facts but reviewing de novo the trial court’s
application of the law to those facts. Grey v. State, 299 S.W.3d 902, 907 (Tex. App.—
Austin 2009, pet. ref’d) (citing Wall v. State, 184 S.W.3d 730, 742-43 (Tex. Crim. App.
2006)).
The Confrontation Clause of the Sixth Amendment to the United
States Constitution provides that, “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses
against him.” U.S. CONST. amend VI. This procedural guarantee applies
to both federal and state prosecutions. Pointer v. Texas, 380 U.S. 400, 403,
85 S. Ct. 1065, 1067-68, 13 L. Ed. 2d 923 (1965); De La Paz v. State, 273 S.W.3d
671, 680 (Tex. Crim. App. 2008). Consistent with the Confrontation Clause
guarantee, a testimonial hearsay statement may be admitted in evidence
against a defendant “only where the declarant is unavailable, and only
where the defendant has had a prior opportunity to cross-examine.”
Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1373-74, 158 L. Ed. 2d
177 (2004); see De La Paz, 273 S.W.3d at 680. “[T]he Crawford rule reflects
the Framers’ preferred mechanism (cross-examination) for ensuring that
inaccurate out-of-court testimonial statements are not used to convict an
accused.” Whorton v. Bockting, 549 U.S. 406, 418, 127 S. Ct. 1173, 1182, 167
L. Ed. 2d 1 (2007); De La Paz, 273 S.W.3d at 680. “Generally, speaking, a
hearsay statement is ‘testimonial’ when the surrounding circumstances
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objectively indicate that the primary purpose of the interview or
interrogation is to establish or prove past events potentially relevant to
later criminal prosecution.” De La Paz, 273 S.W.3d at 680.
Pollard v. State, 392 S.W.3d 785, 792 (Tex. App.—Waco 2012, pet. ref’d).
In response, the State argues that Crawford does not prevent expert witnesses
from offering their independent judgments merely because their judgments were in
some part formed by their exposure to otherwise inadmissible evidence. Relying on
United States v. Palacios, 677 F.3d 234 (4th Cir.), cert. denied, 133 S. Ct. 124 (2012), the State
contends that Schooler gave her independent judgment as a gang expert that applied
her training and experience to the information before her that produced “an original
product that can be tested through cross-examination.” Id. at 243. We agree.
Rule of Evidence 703 provides:
The facts or data in the particular case upon which an expert bases
an opinion or inference may be those perceived by, reviewed by, or made
known to the expert at or before the hearing. If of a type reasonably relied
upon by experts in the particular field in forming opinions or inferences
upon the subject, the facts or data need not be admissible in evidence.
TEX. R. EVID. 703. Under this rule, an expert may base an opinion solely on hearsay.
Martinez v. State, 22 S.W.3d 504, 508 (Tex. Crim. App. 2000); Aguilar v. State, 887 S.W.2d
27, 29 & n.8 (Tex. Crim. App. 1994).
In Palacios, the Fourth Circuit addressed the defendant’s Confrontation objection
to the gang expert’s testimony that relied in part on interviews with unnamed gang
members and victims of gang violence.
Federal Rule of Evidence 705 allows an expert witness to “base an
opinion on facts or data in the case that the expert has been made aware of
or personally observed.” This includes inadmissible evidence—including
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hearsay—“[i]f experts in the particular field would reasonably rely on
those kinds of facts or data in forming an opinion on the subject.” FED. R.
EVID. 703; see also United States v. Leeson, 453 F.3d 631, 637 (4th Cir. 2006)
(holding that a district court did not abuse its discretion by admitting
expert testimony based on hearsay when it had been “sufficiently
established” that such hearsay statements were the type of information
“reasonably relied upon by experts in [the] field”).
Under Crawford, testimonial hearsay raises special concerns,
however, because it implicates a defendant’s constitutional rights. See
United States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009). Crawford
established that the Confrontation Clause bars the “admission of
testimonial statements of a witness who did not appear at trial unless he
was unavailable to testify, and the defendant had had a prior opportunity
for cross-examination.” 541 U.S. at 53-54, 124 S. Ct. 1354. The Supreme
Court has not provided a definitive definition of “testimonial,” but a
statement “procured with a primary purpose of creating an out-of-court
substitute for trial testimony” is the quintessential example of testimonial
hearsay. Michigan v. Bryant, ___ U.S. ___, 131 S. Ct. 1143, 1155, 179 L. Ed. 2d
93 (2011). Although “Crawford forbids the introduction of testimonial
hearsay as evidence in itself,” we have recognized that “it in no way
prevents expert witnesses from offering their independent judgments
merely because those judgments were in some part informed by their
exposure to otherwise inadmissible evidence.” Johnson, 587 F.3d at 635.
The touchstone for determining whether an expert is “giving an
independent judgment or merely acting as a transmitter for testimonial
hearsay” is whether an expert “is applying his training and expertise to
the sources before him,” thereby producing “an original product that can
be tested through cross-examination.” Id.
Applying this test, we rejected a claim identical to the one before us
in United States v. Ayala, 601 F.3d 256 (4th Cir. 2010). Ayala involved the
same MS–13 conspiracy we confront here, and similar to Palacios, the
appellants in that case claimed that the district court’s admission of the
expert testimony of Sergeant Norris and two other law enforcement
officials violated their Confrontation Clause rights because the testimony
“relied in part on interviews with unnamed declarants.” Id. at 274. We
held that no Crawford violation had occurred, observing:
As an initial matter, it is unclear whether the interviews these
experts relied on were even testimonial, given that the record is
rather bare about the circumstances in which they were conducted.
But even if we assume that each expert did rely on testimonial
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statements, that fact alone does not offend the Confrontation Clause
because the experts did not act as mere transmitters and in fact did
not repeat statements of particular declarants to the jury. Instead,
they offered their independent judgments, most of which related to
the gang’s general nature as a violent organization and were not
about the defendants in particular. These judgments resulted from
many years of observing the gang, studying its methods, and
speaking with its members. Given that each expert was subject to
cross-examination about his judgment, we find no error in the
admission of their testimony.
Id. at 275.
Here, Sergeant Norris explained the bases for his expertise
regarding MS–13. These included extensive gang culture training,
interactions with other law enforcement officers who specialize in gangs,
personal observation through surveillance and executing search warrants,
and “[h]undreds and hundreds ..., if not thousands” of interviews with
MS–13 members and victims of MS–13 gang violence. J.A. 637. As in
Ayala, the record before us is unclear as to whether these interviews were
testimonial. See 601 F.3d at 275. Palacios, in fact, makes no assertion that
they were. Assuming at least some of the interviews Norris conducted
produced testimonial hearsay, however, Norris did not specifically
reference any of these interviews during his expert testimony, nor did he
make any mention of Palacios in particular. Rather, he used these
interviews, along with the other sources of his extensive knowledge about
MS–13, to form an independent opinion about the gang’s history,
operation, structure, practices, and symbols. Norris was available for
cross-examination regarding this opinion. As such, we reiterate our
position in Ayala that the admission of Norris’s testimony was not a
Crawford violation, even if his expert opinion was based, in part, on
testimonial hearsay.
Palacios, 677 F.3d at 242-44.
Likewise, we conclude that Schooler’s testimony that the other persons in the
photographs were gang members did not violate the Confrontation Clause because her
testimony demonstrated her training and experience with criminal street gangs in
general and specifically with the Latin Kings and produced an original product that
Cabrera v. State Page 8
could be, and was, tested by cross-examination.
We overrule Agundiz Cabrera’s issue and affirm the trial court’s judgment.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed May 8, 2014
Do Not Publish
[CRPM]
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