Erskins Rivers v. The State of Texas--Appeal from 338th District Court of Harris County

Opinion issued November 8, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00421-CR

ERSKINS RIVERS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 1030798

MEMORANDUM OPINION

Appellant, Erskins Rivers, appeals from a judgment convicting him for the murder of Anthony Howard. See Tex. Pen. Code 19.02(b) (Vernon 2003). Appellant pleaded not guilty. The jury found appellant guilty and assessed punishment at life in prison. In his first issue, appellant challenges the factual sufficiency of the evidence to establish guilt. Appellant s second through fourth issues, which concern the punishment phase of trial, assert that the trial court erred (1) by admitting photographs of appellant s tattoos, (2) by admitting an officer s testimony as a gang membership expert, and (3) by failing to instruct the jury to limit its use of gang membership evidence to determine appellant s character or reputation. We conclude the evidence is factually sufficient and that the trial court did not err by admitting evidence of appellant s tattoos and expert testimony about tattoos, and that appellant was not egregiously harmed by the trial court s failure to give the jury instruction. We affirm. Background

On June 10, 2005, Anthony, along with his sisters, Stephanie and Viola Howard, and a friend, Tiffany Taylor, stood on the street next to Tiffany s car, after leaving a birthday party. As they talked, a dark-colored Cadillac approached. When the car s headlights were suddenly extinguished, gunfire rang out from the car in their direction. Anthony was killed by multiple gunshots, and Stephanie and Viola were also struck by bullets, but Tiffany was not injured.

After the shooting, Latrice Woodley, a guest at the party, heard one of the occupants in the car say that Boobee is next. Boobee is Dexter Taylor, Anthony s best friend and cousin. Boobee had been expected to attend the party where the shooting occurred. Boobee had previously been charged with shooting appellant in the face, but the case was dismissed when appellant did not appear for that trial. After that case was dismissed and before the shooting, appellant s brother Brian, told Anthony, Tell the n_____ that shot my brother that I m looking for him.

In the subsequent police investigation, officers recovered 14 fired cartridge casings from at least two different firearms, a .45 caliber and a 9 millimeter. The witnesses to the shooting led police to appellant and his brother, who were each charged with the murder of Anthony. They stood trial before a single jury. At trial, the State presented the testimony of four eyewitnesses.

Stephanie identified appellant as the shooter. The night of the shooting, Stephanie told a police officer that she remembered seeing only one person, a dark-skinned dude, in a dark colored car. In the days after the shooting, Stephanie realized that the man she saw in the car was appellant. A week later, in a taped police interview, she identified appellant from a photo line-up as the shooter. She also identified appellant s brother Brian as someone she remembered at the shooting. She later explained that she did not see Brian that night, and only told the police officers that she had seen Brian because Viola told her Viola had seen Brian. Stephanie identified appellant in court as the shooter when she testified at trial. Stephanie expressed disbelief that appellant was the shooter because she knew him.

George Brandyburg also identified appellant. Brandyburg was at the same party as Anthony and was standing at the end of the driveway at the time of the shooting. Brandyburg initially told a police officer that three people were in the dark green Cadillac but that he could not see who did the shooting and could not identify anyone in the car. At trial, Brandyburg testified that the shots came from the front passenger side door. When he testified at trial, Brandyburg identified appellant as one of the occupants in the front seat.

The other witnesses, Viola and Tiffany, did not identify appellant. Viola identified appellant s brother as a shooter. Viola initially told a police officer that she saw three men shooting from the car but could only see one person clearly. In her second police interview, Viola identified appellant s brother as shooting from the front passenger seat. At trial, she stated that could see the driver s gun shooting past the front passenger, and appellant s brother was shooting through the back passenger window. She could not identify the driver. She also saw a third man, who shot over the car while hanging out of the rear passenger window, but she could not identify him. Tiffany did not identify anyone. Tiffany initially told a police officer that three people were in the car but that she could not identify any of them because she did not get a good look at anyone s face. At trial, she testified that only two of the three passengers appeared to be shooting.

Appellant did not present any evidence. The jury found appellant and his brother guilty of murder. In the sentencing phase, appellant stipulated to evidence of four misdemeanor and three felony convictions. One of the offenses to which appellant stipulated was engaging in organized criminal activity as a member of a street gang, specifically Fed-X. The State also presented other evidence of appellant s gang membership, such as photographs of appellant s tattoos, and testimony from a police officer who testified as a gang expert.

Factual Sufficiency

In his first issue, appellant challenges the factual sufficiency of the evidence to establish appellant s guilt. Appellant contends that the State s witnesses lack credibility because in the police interviews conducted within hours of the shooting, none of them identified the shooter or the occupants of the car, and because their testimony conflicts with each other. Appellant contends Stephanie s testimony puts appellant in the driver s seat, but Brandyburg s testimony puts appellant in the front passenger seat. Appellant also notes that Viola places appellant s brother in the front passenger seat.

When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is clearly wrong or manifestly unjust simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury s verdict. Id. A jury is in the best position to evaluate the credibility of witnesses, and we are required to afford due deference to the jury s determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). In conducting a factual-sufficiency review, we must also discuss the evidence that, according to appellant, most undermines the jury s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

Although appellant accurately notes that some of the details are inconsistent and that the witnesses did not immediately notify police officers about appellant s identity as the shooter, the record also shows that Stephanie positively identified appellant from a photo lineup and in court as the person she saw shooting from the car that night from the driver s seat area. Viola s testimony is consistent with Stephanie s testimony, in that Viola places appellant s brother in the front passenger seat as a shooter. Brandyburg also identified appellant as being in the front seat. The physical evidence establishes that two guns were fired that night, which is consistent with their testimony. The State also presented a motive of revenge for appellant and his brother to shoot Anthony based on his friendship with Boobee. Because the jury was in the best position to evaluate the credibility of the witnesses to consider and reconcile the conflicts in the evidence, we give its determinations due deference. See Marshall, 210 S.W.3d at 625.

We conclude the evidence is not so weak that the verdict is clearly wrong and manifestly unjust, and there is no basis in the record for a conclusion that the great weight and preponderance of the evidence contradicts the jury s verdict. See Watson, 204 S.W.3d at 417. We hold that the evidence is factually sufficient. We overrule appellant s first issue.

Admission of Photographs of Gang-Related Tattoos

In his second issue, appellant contends that the trial court erred in admitting into evidence photographs of appellant s gang-related tattoos during the punishment phase of trial because the danger of unfair prejudice substantially outweighed the probative value of the photographs. See Tex. R. Evid. 403.

A trial court s ruling on a Rule 403 objection is reviewed for abuse of discretion. Reese v. State, 33 S.W.3d 238, 241 (Tex. Crim. App. 2000). Rule 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Tex. R. Evid. 403. The Court of Criminal Appeals has identified a non-exclusive list of factors to apply in making a Rule 403 analysis. Reese, 33 S.W.3d at 240 41. These factors include, but are not limited to (1) how probative the evidence is; (2) the potential of the evidence to impress the jury in an irrational but indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent s need for the evidence. Id. A trial court s ruling on a Rule 403 objection is reviewed for an abuse of discretion. Id. at 241.

Under the first factor of Reese, we must determine how probative the evidence is. The photographs were highly probative of appellant s affiliation with the Fed-X and 5 Deuce Hoova Crips gangs. Officer Squires testified that, while it was not the sole factor in determining gang membership, a tattoo is highly indicative of gang affiliation. The second factor requires that we examine the potential of the evidence to impress the jury in an irrational but indelible way. The State used the photographs to show appellant s gang membership in a particular gang. Evidence of gang membership, including the use of photographs of tattoos, is usually admissible for punishment purposes. See Anderson v. State, 901 S.W.2d 946, 950 (Tex. Crim. App. 1995). The third factor concerns the time that the proponent needs to develop the evidence. Only 16 pages of testimony, which is a small percentage of the reporter s record from the punishment phase, concerns the photographs. The fourth factor requires that we look at the proponent s need for the evidence. The State used the evidence to show appellant s affiliation with Fed-X. Appellant contends that the photographs were not necessary because appellant had already stipulated to a prior conviction that stated he was a member of Fed-X. However, the photographs connected appellant not only to the Fed-X gang, but also to the 5 Deuce Hoova Crips gang. Further, the trial court could have determined that a permanent tattoo of a gang is more suggestive of a lifelong commitment to the gang than a one-time conviction for membership in the gang. We conclude that the four factors weigh in favor of admission of the photographs. We hold that the trial court did not abuse its discretion by finding that the dangers of unfair prejudice did not substantially outweigh the probative value of the evidence regarding photographs of appellant s tattoos. We overrule appellant s second issue.

Expert Testimony

In his third issue, appellant contends that the court erred by admitting Officer Squires s testimony as a gang membership expert. Appellant contends that Officer Squires s testimony was tainted and his opinion that [a]ppellant was a gang member was not based upon a subject matter appropriate for expert testimony. Appellant asserts the expert testimony was based upon an interrogation of appellant while appellant was in custody without benefit of the warnings against self-incrimination as required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).

A trial court s determination of a witness s qualifications as an expert and its decision to allow expert testimony are reviewed for an abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). Rule 702 of the Texas Rules of Evidence provides that [i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. Tex. R. Evid. 702. The facts in a 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, and such facts need not be admissible in evidence if they are of a type reasonably relied upon by experts in the particular field in forming opinions on the subject. Tex. R. Evid. 703; Joiner v. State, 825 S.W.2d 701, 707 08 (Tex. Crim. App. 1992); Ramirez v. State, 815 S.W.2d 636, 651 (Tex. Crim. App. 1991).

Outside the presence of the jury, Officer Squires explained that he spoke to appellant while appellant was in custody without giving appellant Miranda warnings and appellant admitted his gang membership. Officer Squires said his opinion about appellant s gang membership is premised on appellant s answers in that interview and on the tattoos on appellant s body. One of the tattoos the officer points to is the name Fed-X. Appellant also has a tattoo that says 5-2 with a double barrel shot gun with the word Nigga underneath. The officer stated that Fed-X is a local street gang in the Houston area. The officer also said that the tattoo is a typical tattoo that is used by people that are a member [sic] of the Fed X gang, to show membership in that gang. The officer further related that the other tattoo refers to a very large Crip set that originated in Los Angeles. The officer explained that even if appellant had not told him about the tattoo with the 5-2, he would have suspected that it had something to do with the 5 Deuce Hoova Crips. The officer acknowledged, however, that typically we are not going to use just a tattoo to identify somebody and that a good part of his opinion that appellant was a member of these gangs was based on what appellant told him.

Outside the presence of the jury, appellant objected to the admission of the expert testimony since it s based primarily on an interview with my client after he was in custody. Appellant also objected by asserting that the witness has not been established as an expert. The trial court sustained appellant s objection by stating, But I do want to stay away from the area of the self-admission to this witness, as I did with the other witness, until and unless somebody gives me something with some authority as to whether or not that would be admissible. The trial court also ruled that it would allow the expert evidence conditioned upon the witness being able to testify as to some specific expertise with regard to that gang and in terms of identification with regard to that gang.

After obtaining favorable rulings in the hearing outside the presence of the jury, appellant only twice objected to the officer s testimony that occurred before the jury. Appellant objected that the officer was not qualified to give an opinion (1) on the tattoo that has a 5-2 with the shotgun and word Nigga, and (2) whether appellant is a member of the criminal street gang Fed-X.

A. Interrogation of Appellant

To preserve error, an appellant must assert an objection and obtain an adverse ruling. Tex. R. App. P. 33.1; Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Appellant objected to the use of appellant s confession outside the presence of the jury after taking the witness on voir dire. The trial court sustained appellant s objection and admonished the State not to introduce evidence premised on appellant s self-admission. Thus, appellant did not obtain an adverse ruling outside the presence of the jury; the ruling was favorable. Appellant did not object or request an instruction to disregard when the witness stated during direct examination that his opinion was based, in part, on the self-admission. Rather, appellant only objected on the grounds that the witness was not qualified as an expert. Error was not preserved because appellant never obtained an adverse ruling. Fuller v. State, 827 S.W.2d 919, 926 (Tex. Crim. App. 1992) (stating that to preserve error, the most important procedure is to press the specific objection to the point of obtaining an adverse ruling, be that to the objection, request for an instruction, or the motion for mistrial ). We hold appellant waived error concerning evidence premised on the interrogation of appellant. Tex. R. App. P. 33.1; Wilson, 71 S.W.3d at 349.

B. Qualification of Witness

Officer Squires testified that he has been a certified peace officer for 11 years. He has worked with the Harris County Sheriff s Office Disruptive Group Unit at the Harris County Jail for the last seven years. The officer reported that he has over 3000 hours of training directly involved with gang identification of prison and street gang members. The officer related that he has been a member of the Texas Gang Investigators Association for 12 years and been with the Texas Violent Gang Task Force for 13 years. We conclude that the trial court did not abuse its discretion by determining that Officer Squires was qualified to testify as an expert on gang membership. See Wyatt v. State, 23 S.W.3d 18, 27 28 (Tex. Crim. App. 2000) (finding that police officer was qualified to testify as expert on sexual offenders and recidivism based on experience and specialized knowledge).

We hold that the trial court did not abuse its discretion by allowing Officer Squires s testimony. We overrule appellant s third issue.Jury Charge in Sentencing Phase

In his fourth issue, appellant contends that the trial court failed to instruct the jury to only consider evidence of appellant s gang membership to determine his character or reputation.

When reviewing charge errors, an appellate court must undertake a two-step review: first, the court must determine whether error actually exists in the charge; second, if the court finds error, it must determine whether sufficient harm resulted from the error to require reversal. Olivas v. State, 202 S.W.3d 137, 143 44 (Tex. Crim. App. 2006); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). When, as here, there has not been a timely objection to the charge made at trial, if there is error in the charge, an appellate court will reverse only if the defendant can show egregious harm. Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994); Almanza, 686 S.W.2d at 171.

Appellant cites to Beasley v. State in stating that the jury should be instructed that evidence of gang membership can only be used to determine the reputation or character of appellant. See Beasley v. State, 902 S.W.2d 452, 457 (Tex. Crim. App. 1995). The issue in Beasley was whether the trial court erred by admitting evidence of gang membership in the punishment phase of trial; the issue was not whether jury charge error occurred. Id. at 454. The Court noted that under former Rule of Criminal Evidence 404(c), during the punishment phase of trial evidence may be offered by an accused or by the prosecution as to . . . his character. Id. at 456. // The Court held

[I]t is not necessary to link the accused to the bad acts of misconduct generally engaged in by gang members, so long as the jury is (1) provided with evidence of the defendant's gang membership, (2) provided with evidence of character and reputation of the gang, (3) not required to determine if the defendant committed the bad acts or misconduct and 4) only asked to consider reputation or character of the accused.

Id. at 457.

Appellant contends that the fourth prong, which provides that the jury is only asked to consider reputation or character of the accused requires that the charge include that language. Like Beasley, the record here shows that the jury was provided with evidence of the appellant s gang membership, the jury was told that gangs commit crimes, and the evidence of gang membership was pertinent to the reputation or character of appellant. See id. at 456. However, unlike the third prong in Beasley, here the jury was given an instruction to determine whether the defendant committed bad acts or misconduct. See id. at 453 54.

Assuming it was error to fail to instruct the jury to limit its consideration of gang evidence to assessing the character or reputation of appellant, we conclude appellant was not egregiously harmed by the omission. Article 37.07, section 3(a)(1) states that in the punishment phase,

evidence may be offered by the [S]tate and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and . . . any other evidence of an extraneous crime or bad act . . . .

Tex. Code Crim. Proc. Ann. art. 37.07, 3(a)(1) (Vernon 2006). In accordance with article 37.07, the trial court instructed the jury to only consider evidence of an extraneous crime or bad act if it believed beyond a reasonable doubt that appellant committed the extraneous crime or bad act. See id.; Bluitt v. State, 137 S.W.3d 51, 54 (Tex. Crim. App. 2004).

The jury was told that appellant was a member of a gang and that gangs, in general, commit crimes. The trial court limited consideration of evidence in determining appellant s punishment by requiring the jury to only consider bad acts that were proven beyond a reasonable doubt. We cannot conclude that the failure to instruct the jury to limit consideration of gang evidence to determination of the defendant s character or reputation egregiously harmed appellant. We hold that appellant was not egregiously harmed by the omission of the jury charge. We overrule appellant s fourth issue.

Conclusion

We affirm the judgment of the trial court.

Elsa Alcala

Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

Do not publish. Tex. R. App. P. 47.2(b).