                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-12-00103-CR


DONALD GREGORY                                                      APPELLANT
STEPHENSON

                                         V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
                     TRIAL COURT NO. CR11864

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                        MEMORANDUM OPINION1

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                                   I. INTRODUCTION

      Appellant Donald Gregory Stephenson appeals the trial court’s judgment

sentencing him to life in prison after he entered an open plea of guilty to the

State’s charge of possession of a controlled substance with the intent to deliver,


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       See Tex. R. App. P. 47.4.
to-wit: methamphetamine in the amount of more than four grams but less than

200 grams.         Stephenson also pleaded true to the State’s enhancement

paragraph, which alleged a previous felony conviction for possession of

methamphetamine. In one point, Stephenson argues that the trial court erred by

allowing the State to introduce at the punishment hearing photographs made

from the contents of his cellphone, and that this error entitles him to a new trial

on punishment. We will affirm.

                                   II. DISCUSSION

      At the plea-and-punishment hearing, the State called two witnesses.

Arresting Officer Richard Branum testified that he arrested Stephenson and

found 17.24 grams of methamphetamine on him. During the arrest, Branum

looked at several images that were on Stephenson’s cellphone. These images

tend to link Stephenson with the Aryan Brotherhood of Texas.             Stephenson

objected to the admission of the photographs into evidence.           The trial court

overruled his objection.

      The State also called Officer Monte Dirickson, who testified that he

specialized   in    gang-related   crime   investigations,   specifically the   Aryan

Brotherhood of Texas.       Dirickson stated that he had previously testified at

another trial regarding the Aryan Brotherhood. He also testified that he was

aware of Stephenson and had investigated him personally.               According to

Dirickson, Stephenson was a known member of the Aryan Brotherhood of Texas

and his name appeared on several different “official rosters” of Aryan


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Brotherhood members.      These rosters had been seized during other search

warrants.

      By Dirickson’s account, Stephenson is known to hold Aryan Brotherhood

meetings at his house.    The Aryan Brotherhood refers to these meetings as

“church.” Dirickson also testified that Stephenson was under indictment on an

unrelated charge of engaging in organized criminal activity in Palo Pinto County.

Dirickson further stated that he had received other information about

Stephenson’s Aryan Brotherhood involvement from confidential informants. At

the close of the hearing, the trial judge sentenced Stephenson to life, entered

judgment accordingly, and this appeal followed.

      Assuming without deciding that Branum obtained the photographs made

from the contents of Stephenson’s cellphone through a violation of search and

seizure law, and that they should have been excluded from evidence, we must

reverse the conviction unless we determine beyond a reasonable doubt that the

admission of these photographs did not contribute to his conviction. Tex. R. App.

P. 44.2(a); Langham v. State, 305 S.W.3d 568, 582 (Tex. Crim. App. 2010);

Davis v. State, 203 S.W.3d 845, 849–53 (Tex. Crim. App. 2006), cert. denied,

549 U.S. 1344 (2007). To make that determination, we consider the importance

of the evidence to the State’s case, whether the erroneously admitted evidence

was cumulative of other evidence, the presence or absence of evidence

corroborating or contradicting the erroneously admitted evidence on material




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points, and the overall strength of the State’s case. Delaware v. Van Arsdall, 475

U.S. 673, 684, 106 S. Ct. 1431, 1438 (1986); Langham, 305 S.W.3d at 582.

      Here, the photographs made from the contents from Stephenson’s

cellphone were cumulative of other evidence of similar effect. The photographs

tended to link Stephenson to the Aryan Brotherhood of Texas, but the State

introduced this same evidence and more through the testimony of Dirickson.

Indeed, Dirickson testified that he was specifically trained for “gang cases” and

that he had been investigating gangs, specifically the Aryan Brotherhood of

Texas, for the past eight years. He averred that he had personally investigated

Stephenson and that not only was Stephenson a member of the Aryan

Brotherhood, Stephenson held gang-member meetings, called “church”, at his

house.

      Dirickson also testified that Stephenson was on several of what police

consider “official rosters” for members of the Aryan Brotherhood. Furthermore,

Dirickson stated that Stephenson was under an unrelated indictment in Palo

Pinto County for engaging in organized criminal activity. He also said that he

knew about Stephenson’s participation in the Aryan Brotherhood of Texas

through confidential informants. We conclude beyond a reasonable doubt that

the admission of the complained-of photographs did not contribute to the trial

court’s assessment of Stephenson’s punishment and judgment. See Biera v.

State, 391 S.W.3d 204, 211–12 (Tex. App.—Amarillo 2012, pet ref’d) (holding

that any error in admission of handgun found in allegedly illegal search of


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defendant’s vehicle was harmless error because introduction of handgun was

cumulative of other evidence of similar effect). Thus, we overrule Stephenson’s

sole point.

                               III. CONCLUSION

      Having overruled Stephenson’s sole point on appeal, we affirm the trial

court’s judgment.


                                                 PER CURIAM

PANEL: MEIER, GARDNER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 14, 2014




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