                                          NO. 07-08-0180-CR

                                    IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                              AT AMARILLO

                                                 PANEL C

                                              JULY 28, 2009

                               ______________________________


                                ERIC JEROME MACK, APPELLANT

                                                      V.

                                THE STATE OF TEXAS, APPELLEE

                             _________________________________

               FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY;

                 NO. 1095388D; HONORABLE EVERETT YOUNG, JUDGE1
                          _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                      MEMORANDUM OPINION


        Appellant, Eric Jerome Mack, pled guilty in open court and was convicted of delivery

of a controlled substance, enhanced.2 Punishment was assessed by a jury at fifty-five


        1
        Honorable Phillip Vick, Senior District Judge, sitting by assignm ent. Tex. Gov’t Code Ann. §§ 74.056
and 75.002(a)(3) (Vernon 2005).

        2
         The indictm ent alleged the delivery of one gram or m ore, but less than four gram s of cocaine. As
such the prim ary offense was a second degree felony. See Tex. Health & Safety Code Ann. § 481.112(c)
(Vernon 2003). The indictm ent also alleged a prior felony conviction, m aking the offense punishable as a first
degree felony. See Tex. Penal Code Ann. §12.42(b) (Vernon Supp. 2008).
years confinement and a $10,000 fine.        Appellant contends the trial court abused its

discretion by: (1) admitting evidence of his gang affiliation during the punishment phase;

and (2) failing to grant his motion to quash the venire panel because the trial court

arraigned him at the conclusion of the State’s voir dire. Originally appealed to the 2nd Court

of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant

to its docket equalization efforts. See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005). We

are unaware of any conflict between precedent of the 2nd Court of Appeals and that of this

Court on any relevant issue. See Tex. R. App. P. 41.3. We affirm.


       I.     Gang Affiliation


       Appellant asserts the trial court abused its discretion by admitting extraneous gang

affiliation character evidence in the absence of sufficient evidence from which a rational

factfinder could find beyond a reasonable doubt the gang affiliation evidence was true.


       We review a trial court’s ruling admitting testimony under an abuse of discretion

standard; McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App. 2005), and will uphold

the trial court’s decision if it is at least within the zone of reasonable disagreement. Page

v. State, 213 S.W .3d 332, 337 (Tex.Crim.App. 2006). See Hernandez v. State, 205 S.W .3d

555, 558 (Tex.App.--Amarillo 2006, pet. ref’d).


       Article 37.07, section 3(a) of the Texas Code of Criminal Procedure governs the

admissibility of evidence during the punishment phase of a non-capital case. Sims v. State,



                                              2
273 S.W .3d 291, 295 (Tex.Crim.App. 2008). The current version of this provision allows for

the admission of any evidence the trial court “deems relevant to sentencing” and provides,

in pertinent part, as follows:


        Regardless of the plea and whether the punishment be assessed by the judge
        or the jury, evidence may be offered by the state 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, . . . and, notwithstanding Rules 404 and 405,
        Texas Rules of Evidence, any other evidence of an extraneous crime or bad
        act that is shown beyond a reasonable doubt by evidence to have been
        committed by the defendant or for which he could be held criminally
        responsible, regardless of whether he has previously been charged with or
        finally convicted of the crime or act.


Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2008).


        Testimony regarding a defendant’s affiliation with a gang may be relevant and

admissible at the punishment stage of a trial to show the character of the accused. See

Beasley v. State, 902 S.W .2d 452, 456 (Tex.Crim.App. 1995); Anderson v. State, 901

S.W .2d 946, 950 (Tex.Crim.App. 1995).3 In Beasley, the Court held that it is not necessary

to link the accused to the bad acts or misconduct generally engaged in by gang members,

so long as the factfinder is (1) provided with evidence of the defendant’s gang membership,

(2) provided with evidence of character and reputation of gang, (3) not required to determine

if defendant committed the bad acts or misconduct, and (4) only asked to consider reputation

or character of the accused. Beasley, 902 S.W .2d at 457. See Sierra v. State, 266 S.W .3d


        3
         In order for gang affiliation evidence to be relevant, the State m ust show (1) proof of the group’s
violent and illegal activities, and (2) the defendant’s m em bership in the organization. Mason v. State, 905
S.W .2d 570, 577 (Tex.Crim .App. 1995).

                                                     3
72, 77 (Tex.App.–Houston [1 st Dist.] 2008, no pet.); Dean v. State, Nos. 02-07-0287-CR, 02-

07-0288-CR, 02-07-0289-CR, 2008 W L 4831390, at *4 (Tex.App.–Fort W orth Nov. 6, 2008,

pet. ref’d) (not designated for publication). The evidence must also show the purpose of the

gang to which the defendant belongs so that the factfinder can conclude whether

membership in the gang is a positive or negative character trait of the defendant. See

Anderson, 901 S.W .2d at 950.


        At trial, Officer Glen Gibson, City of Grand Prairie, testified that, in March 1997, he

arrested Appellant. In subsequent encounters, Officer Gibson testified Appellant admitted

he was a member of the 23 rd Blood Gang. He further testified that he was familiar with the

gang because they operated in his jurisdiction and engaged in criminal activity such as

narcotics, drive-by shootings, robberies, and car-jackings.4


        Appellant testified he told Officer Gibson that he hung with the Bloods–not that he was

a member. Further into his testimony, however, Appellant admitted wearing a t-shirt in jail

that represented he was a California Blood member and responded affirmatively when asked

if he was a Blood gang member during a jail classification interview in July 2006.5




        4
         O fficer Gibson also testified Appellant was not in custody when he m ade the adm issions and the
adm issions were given freely and voluntarily.

        5
            At trial, Appellant testified as follows:

        Q. Do you recall on July 7 th, 2006, that when you were asked if you were a m em ber of a
        street gang, you said you were an ex 23 rd Street Blood and you signed off on that, correct?
        A. I used to hang with.
        Q. W ait a m inute, you signed off that you were an ex 23 rd Street Blood; is that correct?
        A. Yes. They had m e in the system as a Blood, so I told them yes. I didn’t lie about it.

                                                        4
        Under Beasley and Anderson, the State met the evidentiary predicate for admission

of evidence of Appellant’s gang affiliation and the jury determined whether the State’s level

of proof was sufficient.6 Accordingly, we find that the trial court did not abuse its discretion

in admitting evidence of Appellant’s gang membership. See Pierce v. United States, 234

S.W .3d 265, 272 (Tex.App.–W aco 2007, pet. ref’d).                  Appellant’s first point of error is

overruled.


        II.      Arraignment


        The Texas Code of Criminal Procedure provides that, after indictment, there shall be

an arraignment in all felony cases and misdemeanor cases punishable by imprisonment.

Tex. Code Crim. Proc. Ann. art. 26.01 (Vernon 2009).7 Although the Code does not set any

outside limit for the time of arraignment, the Court of Criminal Appeals has uniformly held

that, while it is proper to arraign an accused before the jury is selected, the fact that it was

done after the jury was sworn and impaneled presents no error. Thompson v. State, 447

S.W .2d 920, 922 (Tex.Crim.App. 1969); Russell v. State, 206 S.W . 79, 79 (Tex.Crim.App.

1918). See Barnes v. Beto, 247 F. Supp. 435, 436 (D.C. Tex. 1964), aff’d, 353 F.2d 208 (5 th



        6
          The trial court determ ines the threshold issue of the adm issibility of relevant evidence during the
punishm ent phase while the jury determ ines whether the burden of proof has been satisfied by the party
offering the evidence. See Sierra, 266 S.W .3d at 79 (citing Mitchell v. State, 931 S.W .2d 950, 954
(Tex.Crim .App. 1996). Here, after adm itting the evidence of Appellant’s gang m em bership, the trial court
properly instructed the jury it could not consider any evidence of an alleged extraneous crim e or bad act
unless the State had proven Appellant had com m itted the act “beyond a reasonable doubt.” See Hulzar v.
State, 12 S.W .3d 479, 480-81 (Tex.Crim .App. 2000) (holding that, if extraneous evidence is offered during
the punishm ent phase, the trial court m ust sua sponte provide a reasonable doubt instruction).

        7
          The purpose of an arraignm ent is to fix the accused’s identity and hear his or her plea. Tex. Code
Crim . Proc. Ann. art. 26.02 (Vernon 2009).

                                                      5
C ir. 1965), cert. denied, 383 U.S. 920, 86 S.Ct. 918, 15 L.Ed.2d 675 (1966). Here, Appellant

was arraigned outside the presence of the jury prior to the jury being sworn and impaneled.

Further, Appellant makes no showing that he was prejudiced thereby. Accordingly, we find

the trial court did not abuse its discretion by denying Appellant’s motion to quash.

Appellant’s second point of error is overruled.


                                        Conclusion


       The trial court’s judgment is affirmed.




                                                  Patrick A. Pirtle
                                                       Justice

Do not publish.




                                             6
