Pedro Valdillez v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00097-CR

Pedro VALDILLEZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 175th Judicial District Court, Bexar County, Texas

Trial Court No. 2004-CR-4065

Honorable Pat Priest, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: September 28, 2005

AFFIRMED

A jury found defendant, Pedro Valdillez, guilty of aggravated robbery with a deadly weapon (habitual) and assessed punishment at life imprisonment.

In his first issue, defendant asserts the trial court committed constitutional error by admitting evidence, during the punishment phase, that he was a member of a security threat group known as the Mexican Mafia. Defendant asserts admission of the evidence violated Dawson v. Delaware, 503 U.S. 159 (1992) (constitutional error to admit evidence of defendant s membership in white racist prison gang where that evidence was not relevant to any issue being decided at the punishment phase). Although appellant raised objections under Texas Rules of Evidence 402, 403 and 901, he did not object on Dawson or constitutional grounds. Because appellant s trial objections do not comport with his constitutional complaint on appeal, he has not preserved this complaint for review. See Tex. R. App. Proc. 33.1(a); Knox v. State, 934 S.W.2d 678, 687 (Tex. Crim. App. 1996). With respect to defendant s relevancy and prejudice objections, evidence of gang membership is relevant at the punishment phase of trial to show future dangerousness. Mason v. State, 905 S.W.2d 570, 577 (Tex. Crim. App. 1995). The types of activities in which the gang is involved must also be presented to the jury, so that it may determine if the defendant s gang membership is a positive or a negative character trait. Beasley v. State, 902 S.W.2d 452, 456 (Tex. Crim. App. 1995).

In his second issue, defendant asserts he was denied a fair trial due to the prosecutor s improper jury argument during the sentencing phase. Defendant admits no objection was raised, but asserts the error was structural and warrants automatic reversal. We disagree. Any impropriety in the prosecutor s argument to the jury was waived by the defendant s failure to make a proper, clear, and timely objection. See Mathis v. State, 67 S.W.3d 918, 926-27 (Tex. Crim. App. 2002)(reaffirming rule that even if argument is such that it could not be cured by an instruction, defendant is required to object and request mistrial); see also Tex. R. App. Proc. 33.1(a).

We overrule defendant s issues on appeal and affirm the trial court s judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH