David Cantu v. The State of Texas--Appeal from 399th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-07-00330-CR
David CANTU,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-CR-6980
Honorable Juanita A. Vasquez-Gardner, Judge Presiding

Opinion by: Catherine Stone, Justice

 

Sitting: Catherine Stone, Justice

Phylis J. Speedlin, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: February 13, 2008

 

AFFIRMED

David Cantu appeals his murder conviction asserting the trial court erred by: (1) admitting evidence of his gang affiliation; (2) admitting his written acknowledgment of gang affiliation; (3) requiring him to show the jury his tattoos; and (4) denying his request for lesser included offenses in the jury charge. We affirm the trial court's judgment.

 
Gang Affiliation

In his first issue, Cantu complains that the trial court erred in admitting evidence of his gang affiliation during the punishment phase of trial in violation of his First Amendment right to associate. We review the trial court's admission of evidence under an abuse of discretion standard. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005).

Admission of evidence of membership in a gang whose primary purpose is violent or illegal activities is not barred by the First Amendment during the punishment phase of trial. See Mason v. State, 905 S.W.2d 570, 577 (Tex. Crim. App. 1995); Aguilar v. State, 29 S.W.3d 268, 270 (Tex. App.--Houston [14th Dist.] 2000, no pet.). In order for gang affiliation evidence to be relevant, the State must show: (1) proof of the group's violent and illegal activities; and (2) the defendant's membership in the organization. Mason, 905 S.W.2d at 577.

Corporal Robert Rodriguez testified that he works in classification, interviewing inmates and identifying gangs. Corporal Rodriguez stated that determining gang affiliation of inmates is a security issue. Based on Cantu's tattoos, Corporal Rodriguez identified him as belonging to the Tango Orejon gang, which is a rival gang to the Mexican Mafia. Cantu also told Corporal Rodriguez that he was affiliated with the Tango Orejon gang.

Officer Mark Gibson testified that identifying an inmate's gang affiliation is important because a lot of violence exists between rival gangs. Officer Gibson further stated that a severe rivalry existed between the Tango Orejons and the Mexican Mafia resulting in numerous fights and assaults. Officer Gibson stated that the Tango Orejons are considered a dangerous group, and fifty of the gang's members had to be locked down to prevent the continuation of the conflict with the Mexican Mafia.

From the testimony of Corporal Rodriguez and Officer Gibson, the State sufficiently established that Cantu was a member of the Tango Orejon gang and the gang engaged in violent and illegal activities, including fighting and assaults within the jail facility. Accordingly, the trial court did not abuse its discretion in admitting evidence of Cantu's gang affiliation during the punishment phase of trial. Cantu's first issue is overruled.

Acknowledgment of Gang Affiliation

In his second issue, Cantu contends the trial court abused its discretion in admitting into evidence Cantu's written acknowledgment of gang affiliation. Cantu contends the writing was a custodial confession taken in violation of article 38.22 of the Texas Code of Criminal Procedure.

During trial, when the State requested that the written acknowledgment be introduced into evidence, defense counsel requested to approach the bench, and the following dialogue occurred:

MS. RAMIREZ: Your Honor, my objection is - I'll have to show it to you. He's got two social security numbers that's an extraneous offense, to have two different social security numbers.

 

MS. WIEDERMANN: We can white - I can white it out before they - it's - it's published to them.

 

THE COURT: Okay. Then that - did you have any additional?

 

MS. RAMIREZ: No, Your Honor.

 

THE COURT: Okay. Then with that caveat, . . . . Be redacted and State's Exhibit 25 with that deletion is received.

 

Because Cantu failed to object on the basis that the written acknowledgment was taken in violation of article 38.22, his complaint has not been preserved for our review. Tex. R. App. P. 33.1(a); Banargent v. State, 228 S.W.3d 393, 401 (Tex. App.--Houston [14th Dist.] 2007, no pet.); Camarillo v. State, 82 S.W.3d 529, 535 (Tex. App.--Austin 2002, no pet.). Cantu's second issue is overruled.

Tattoos

In his third issue, Cantu contends that the trial court abused its discretion in requiring him to remove his shirt and display his tattoos because the prejudicial effect of the evidence far outweighed any probative value. Under Rule 403 of the Texas Rules of Evidence, a trial court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001). Rule 403 requires exclusion of evidence only when there exists a clear disparity between the degree of prejudice of the offered evidence and its probative value. Id.

Evidence of Cantu's gang membership was relevant at the punishment phase for its probative bearing on Cantu's character. Aguilar, 29 S.W.3d at 270. While it may be true that the actual viewing of the tattoos had a greater impact on the jury than Corporal Rodriguez's description of the tattoos, that does not mean that the viewing of the tattoos, in the manner in which it was done here, was unfairly prejudicial. Only evidence that is unfairly prejudicial must be excluded under Rule 403, and the viewing and description of the tattoos in the instant case was brief. See id.; see also Miller v. State, 2 S.W.3d 475, 482 (Tex. App.--Tyler 1999, no pet.). Accordingly, we cannot say the trial court abused its discretion in requiring Cantu to display his tattoos for the jury. Cantu's third issue is overruled.

 
Lesser Included Offenses

In his final issue, Cantu contends that the trial court erred in denying his request for the inclusion of the lesser included offenses of manslaughter and criminally negligent homicide in the jury charge. A two-prong test is applied to determine whether an appellant was entitled to an instruction on a lesser-included offense. Blissit v. State, 185 S.W.3d 51, 53 (Tex. App.--San Antonio 2005, pet. ref'd). In this case, we are concerned only with the second prong; that is, whether some evidence exists in the record that would permit a jury to rationally find that, if the defendant is guilty, he is only guilty of the lesser-included offense. Id.

Manslaughter requires proof that the defendant acted recklessly, that is, that he consciously disregarded a substantial risk of which he was aware. Gilbert v. State, 196 S.W.3d 163, 165 (Tex. App.--Houston [1st Dist.] 2005, pet. ref'd). In order to be entitled to a jury charge on manslaughter, Cantu had to rely on facts showing recklessness in his discharging the gun because manslaughter is a "result-of-conduct" offense. Id. The key to criminal negligence is the failure of the actor to perceive the risk created by his conduct. Trujillo v. State, 227 S.W.3d 164, 168 (Tex. App.--Houston [1st Dist.] 2006, pet. ref'd). In determining whether there is evidence to support a charge on a lesser included offense, a statement that the defendant did not intend to kill the victim does not automatically entitle him to a charge on a lesser included offense. Gilbert, 196 S.W.3d at 165; Trujillo, 227 S.W.3d at 168.

In this case, the evidence established that while intoxicated, Cantu pointed a gun at his head outside his mother's home and threatened to kill himself if Christy Yeager, his girlfriend, left him. Cantu then fired two shots from the gun. Although Cantu's mother and sister told the police that Cantu had aimed at or shot toward Yeager, they denied that this occurred in their testimony at trial. Yeager, who was upset, went into the bathroom inside the home after the shots were fired. Although Cantu's sister told police that she heard Yeager cry, "no, David, no," before gunshots were fired in the bathroom, she denied hearing Yeager say this in her testimony at trial. Cantu's sister and Cantu's brother also both told police that Cantu returned to the bathroom after the shooting and asked, "is the bitch dead yet?" At trial, Cantu's sister denied hearing her brother make such a statement, and Cantu's brother testified that he told police that Cantu made the statement because he was angry at Cantu. The medical examiner testified that Yeager's hand may have been in a defensive posture when it was struck, and the bullet that struck her chest killed her.

In asserting that he was entitled to the lesser included offenses in the jury charge, Cantu relies on the testimony that he went to a friend's house and told her that he did something stupid, he thought he killed Christy, he did not mean to do it, and he did not want to go to jail. While these statements may be an expression of regret, they are not sufficient evidence that would permit a jury to rationally find that, if Cantu is guilty, he is only guilty of the lesser included offenses. See Schroeder v. State, 123 S.W.3d 398, 401 (Tex. Crim. App. 2003); Gilbert, 196 S.W.3d at 165. Although he may have acted stupidly and did not mean to kill Yeager, there is no evidence that he recklessly discharged the gun or was unable to perceive the risk created by his conduct. Cantu's fourth issue is overruled.

Conclusion

The trial court's judgment is affirmed.

Catherine Stone, Justice

DO NOT PUBLISH