Gilstrap, Raylee Dewayne v. The State of Texas--Appeal from of County

Affirmedand Opinion filed December 5, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-01186-CR

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RAYLEE DAWAYNE GILSTRAP, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 405th District Court

Galveston  County, Texas

Trial Court Cause No. 00CR1124

O P I N I O N

Jurors found appellant Raylee Dawayne Gilstrap guilty of aggravated robbery using a deadly weapon. After he pleaded Atrue@to an enhancement paragraph, they sentenced him to life imprisonment. He presents three points of error on appeal, complaining of omissions in the jury charge, the admission of extraneous offenses, and evidence of gang membership. We affirm.

Background

In November of 1999, appellant and his co-defendant, Reagan Jones, broke into a houseboat occupied by complainants and robbed them at gunpoint. After taking a few dollars and some electronics equipment, appellant and Jones left the boat. Appellant was charged with aggravated robbery for this crime, and this appeal pertains only to that charge.

During the punishment phase of trial, the State presented evidence that immediately after the boat robbery, appellant and Jones drove appellant=s truck to an apartment complex in Houston. There, they robbed two men at gunpoint, took their wallets, and proceeded to assault and batter them. Notified of the assault while it was occurring, the police arrived and demanded entrance into the apartment. Appellant and Jones shot two of the officers, leaving them wounded. After a gun battle, police took appellant and Jones into custody, and found the property taken from the boat in appellant=s bullet-riddled truck.

Jury Charge

Under his first point of error, appellant complains that the jury charge at punishment failed to include the statutorily-mandated parole charge. See Tex. Code Crim. Proc. art. 37.07, '(4)(a). The purpose of the charge is to inform jurors of Agood conduct time@ and Aparole@ in general terms, and to prohibit them from using those concepts in assessing punishment. See Luquis v. State, 72 S.W.3d 355, 360 (Tex. Crim. App. 2002).

Appellant did not request inclusion of the statutory charge at punishment, nor did he object to the omission of it. Although the statute mandates inclusion, this mandate can be waived. See Tucker v. State, No. 05-01-01899-CR, 2002 WL 31424549 (Tex. App.CDallas, Oct. 30, 2002, no pet. h.); Anders v. State, 973 S.W.2d 682, 686 (Tex. App.CTyler 1997, pet. ref=d). As appellant did not object, he may not now complain of any error in omitting the instruction.

In Ramos v. State, a sister court held that, even if a defendant failed to request the statutory instruction on parole, failure to give the instruction was error if the jury inquired about parole during deliberations and the defendant requested the instruction then. 831 S.W.2d 10, 18 (Tex. App.CEl Paso 1992, pet. ref=d). The jury in this case also inquired about parole during deliberations. But unlike Ramos, the defendant here did not request the instruction upon receiving the jury=s note, agreeing instead the jurors should be referred to the instructions already given in the charge. We think this distinction requires a different result than Ramos. The first point of error is overruled.

Extraneous Offenses

In his second point of error, appellant claims that the trial court erred in admitting evidence about the apartment robbery and shoot-out during the guilt/innocence phase of trial. But his record references show only a handful of inadvertent references that cannot be considered evidence of extraneous offenses. Even if they could, they would have been admissible.

First, appellant complains about three references to Jones=trial in Houston on a different crime that occurred shortly after the boat robbery. Second, there was a reference by a police officer to the scene of a second crime, without further elaboration. Third, there was testimony by a police officer that he saw appellant later that same evening holding a gun. Fourth, a photograph of appellant=s bullet-riddled truck was admitted in evidence.

Extraneous offenses are admissible to show the context in which a criminal act occurred. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (holding evidence of three additional murders in one evening was same transaction contextual evidence). Events do not occur in a vacuum, and jurors have a right to hear what occurred immediately before and after the commission of an act so they may realistically evaluate the evidence. Id. No error has been shown, and appellant=s second point of error is overruled.

Gang Membership

In his third point, appellant complains the trial court erroneously admitted evidence of appellant=s membership in the Aryan Brotherhood prison gang during voir dire and the guilt/innocence phase of trial. Again, his record references are sparse. During voir dire, the State asked the panel members in general terms whether anyone had heard of Athe Aryan Brotherhood, the white supremacist gang,@ or knew anyone associated with them. The State was entitled to know if any potential member of the jury was a member of a club (much less a gang) of which appellant was a member. See Barajas v. State, 2002 WL 1380916, at *2 (Tex. Crim. App. 2002) (holding relevant a voir dire question seeking to uncover bias or prejudice in favor of or against the defendant). Appellant did not object to these questions, and they were not improper.

During the guilt/innocence phase, the State established that appellant=s accomplice Jones was not a member of the named gang. It was never argued or suggested that appellant was. Appellant=s argument requires us to presume the jury drew a conclusion based on neither evidence nor argument. This we decline to do. We overrule the third point of error.

The judgment is affirmed.

/s/ Scott Brister

Chief Justice

Judgment rendered and Opinion filed December 5, 2002.

Panel consists of Chief Justice Brister and Justices Hudson and Fowler.

Do Not Publish CTex. R. App. P. 47.3(b).