                         NUMBER 13-10-00365-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI–EDINBURG

CLARENCE MARTIN,                                                            Appellant,

                                             v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 130th District Court
                        of Matagorda County, Texas


                         MEMORANDUM OPINION

                  Before Justices Garza, Vela, and Perkes
                  Memorandum Opinion by Justice Perkes

      Appellant, Clarence Martin, appeals his conviction for aggravated assault with a

deadly weapon, a first-degree felony. See TEX. PENAL CODE ANN. § 22.02 (West 2005).

After a jury trial on guilt-innocence, the trial court assessed punishment at seventy-five

years of confinement in the Texas Department of Criminal Justice.         By two issues,
appellant argues: (1) the evidence is legally insufficient to sustain his conviction; and (2)

the trial court erred by admitting evidence of his ―Aryan Brotherhood‖ gang affiliation

during the guilt-innocence phase of trial. We affirm.

                  I. FACTUAL AND PROCEDURAL BACKGROUND

       One night in February 2007, appellant rented a motel room in Bay City, Texas.

Overnight, appellant had four or five guests come to the room to ―party,‖ the term party

being a euphemism for using crack cocaine. As check-out time approached, appellant

and three of his guests were the only remaining occupants of the room. Appellant

decided he would travel to San Antonio with two of his guests, Michael and Michael’s

girlfriend. This left one remaining guest, Darryl (the ―complainant‖), who was asleep or

―passed out‖ on one of the beds in appellant’s motel room.

       After appellant, Michael, and Michael’s girlfriend loaded their possessions into the

car, appellant and Michael returned to the motel room. Michael’s girlfriend waited in the

car. Michael could not wake the complainant. Appellant told Michael, ―I got this. I’ll

get him up,‖ and proceeded to stab the complainant with a knife while the complainant

was sleeping.

       The complainant testified that he awoke as appellant stabbed him.                The

complainant testified that appellant said, ―I got something for that mother f---er,‖ and then

proceeded to cut him many more times without saying anything. Appellant stabbed the

complainant behind the neck, on the right side of his cheek, elsewhere on the face, and

cut one of his eyes. Appellant cut the complainant’s jaw ―all the way through,‖ requiring

the subsequent removal of all of the complainant’s teeth.


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       Due to massive blood loss, the complainant suffered a stroke. As a result of the

stabbing, at the time of trial, the complainant had a paralyzed hand, a limited range of

motion in one arm, speech and cognitive difficulties, and abnormal right leg function,

requiring the complainant to walk with a cane. The complainant was hospitalized for a

month as a result of his injuries and spent six months in a nursing home. With physical

therapy, the complainant regained the ability to walk.

       Michael and the complainant were friends before the stabbing and remained

friends afterward. Michael told appellant not to stab the complainant. Michael testified

appellant ―was slashing‖ the complainant and that when the appellant pulled the knife out

of the complainant, he would not pull it straight out. ―He would pull it like he was causing

damage.‖ Michael did not think the complainant would survive the stabbing. Sergeant

Chris Crummett of the Bay City Police Department was the first policeman to arrive at the

motel in response to a 911 call. Crummett testified the complainant’s injuries were very,

very serious and that he thought the complainant would die.

       At the motel, before being rushed away for medical attention, the complainant

described the perpetrator to police as a white male, covered in tattoos, who was ―five foot,

eight plus.‖ The complainant told police at the scene he did not know the perpetrator’s

name. The complainant readily identified appellant as the perpetrator in a photograph

line-up and testified at trial he will never forget appellant’s face.     The complainant

testified he met appellant the night before the stabbing and that he did not learn

appellant’s name until his mother read it in a newspaper article about the stabbing.




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Michael and the complainant both testified there was no apparent motive for appellant to

stab the complainant.

        Appellant gave police three different versions of what had transpired: (1) that

appellant was not at the scene when the complainant was stabbed; (2) other people were

in and out of the motel room and could have stabbed the complainant; and (3) Michael

stabbed the complainant while appellant stood at the door of the motel room. DNA

evidence on appellant’s pants matched the complainant’s DNA, to an extremely high

degree of certainty. Though it was of poor quality, surveillance video from the motel

corroborated the witness testimony that appellant and Michael were in the room at the

time of the stabbing, with appellant running out of the room before Michael exited the

room.

        Over appellant’s character and timeliness objections at trial, the trial court admitted

the State’s evidence of gang affiliation offered to show appellant’s motive and identity.

Appellant argued the evidence was character evidence that would not be admissible until

the punishment phase of trial. The gang-affiliation evidence consisted of appellant’s

statement during booking at the Matagorda County Jail that he was a member of the

Aryan Brotherhood and did not want to be jailed with any black people. The evidence

also included photographs of tattoos on appellant’s stomach and legs that included a

large swastika and lightning bolts. A witness for the State testified the lightning bolts

were an insignia of Nazi ―S.S.‖ culture and briefly described supremacists’ tattoos. The

complainant was a black man.




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                               II. STANDARD OF REVIEW

        When conducting a legal sufficiency review, a court must ask whether any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt—not whether it believes the evidence at trial established guilt beyond a reasonable

doubt. Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010) (plurality op.);

Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009) (quoting Jackson v. Virginia,

443 U.S. 307, 318–319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). In doing so, we assess

all of the evidence in the light most favorable to the prosecution. Laster, 275 S.W.3d at

517 (quoting Jackson, 443 U.S. at 319). We must presume that the fact finder resolved

any conflicting inferences in favor of the prosecution and defer to that resolution.

Jackson, 443 U.S. at 326.

        We review a trial court's decision to admit or exclude evidence for an abuse of

discretion. Green v. State, 934 S.W.2d 92, 101–02 (Tex. Crim. App. 1996); Horner v.

State, 129 S.W.3d 210, 216 (Tex. App.—Corpus Christi 2004, pet. denied). Where the

trial court's evidentiary ruling is within the ―zone of reasonable disagreement,‖ there is no

abuse of discretion and we will uphold the trial court's ruling. Santellan v. State, 939

S.W.2d 155, 169 (Tex. Crim. App. 1997); Green, 934 S.W.2d at 102; Horner, 129 S.W.3d

at 216.

                                 III. ISSUES AND ANALYSIS

   A.     Sufficiency of the Evidence

        By his first issue, appellant argues the evidence was legally insufficient to convict

him of aggravated assault with a deadly weapon. Appellant emphasizes the evidence


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allegedly does not show he threatened the complainant and thus there is a reasonable

doubt as to whether he intentionally, knowingly, and recklessly caused the complainant

bodily injury. Appellant also argues the evidence is legally insufficient to show he used a

deadly weapon and points out the knife used to stab the complainant was never found.

        We measure the sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327

(Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997)). Such a charge is one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof, or unnecessarily

restrict the State’s theories of liability, and adequately describes the particular offense for

which the defendant was tried. Id. A person commits the offense of assault if that

person intentionally, knowingly, or recklessly causes bodily injury to another. TEX. PENAL

CODE ANN. § 22.01(a)(1) (West 2005).1 The offense is an aggravated assault if the

person committing the assault uses a deadly weapon during the commission of the

assault. Id. § 22.02(a)(2). A deadly weapon is defined as ―a firearm or anything

manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily

injury‖ or ―anything that in the manner of its use or intended use is capable of causing

death or serious bodily injury .‖ Id. § 1.07(a)(17).




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            The indictment in this case charged the mental state in the conjunctive, alleging appellant
―intentionally, knowingly, and recklessly‖ caused bodily injury. The jury charge tracked the assault statute
and set forth the mental state in the disjunctive: ―intentionally, knowingly, or recklessly.‖ We note
appellant has not complained about this on appeal and the distinction does not affect our analysis. See
Zanghetti v. State, 618 S.W.2d 383, 387–88 (Tex, Crim. App. 1981). Further, on the record in this case,
we cannot conclude the evidence is insufficient to support a finding that appellant acted intentionally,
knowingly, and recklessly.
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       A knife is not a deadly weapon per se or by design. See Thomas v. State, 821

S.W.2d 616, 619–20 (Tex. Crim. App. 1991). A knife becomes a deadly weapon if its

use or intended use renders it capable of causing death or serious bodily injury. See

TEX. PENAL CODE ANN. § 1.07(a)(17)(B); McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim.

App. 2000). We consider whether there is sufficient evidence to show the actor used the

knife or intended to use the knife in such a way that it was ―capable of causing death or

serious bodily injury.‖ Alvarez v. State, 566 S.W.2d 612, 614 (Tex. Crim. App. 1978).

Whether a particular knife is a deadly weapon by design, a deadly weapon by usage, or

not a deadly weapon at all depends on the evidence of each individual case. Thomas,

821 S.W.2d at 620. Factors considered in determining whether a knife is a deadly

weapon in its use or intended use include: (1) dimensions of the knife, (2) manner of its

use or intended use, (3) nature or existence of inflicted wounds, and (4) testimony of the

knife's life-threatening capabilities, if used. Id. at 619.

       After reviewing the evidence, we conclude a rational jury could have found beyond

a reasonable doubt that appellant committed aggravated assault with a deadly weapon.

See Jackson, 443 U.S. at 326. Even if we assume, without deciding, the State was

required to prove a threat, Appellant’s complaint the evidence does not show he

threatened the complainant is moot in light of the complainant’s testimony that appellant

said, ―I got something for that mother f---er,‖ and then proceeded to stab the complainant

multiple more times. Based on the evidence of the severity of the complainant’s injuries

and how appellant used the knife, there is no doubt the knife in this case was a deadly




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weapon.    See McCain, 22 S.W.3d at 497 (finding evidence sufficient to support

conclusion butcher knife was deadly weapon). Appellant’s first issue is overruled.

   B. Admission of Evidence of Appellant’s Gang Affiliation

      By his second issue on appeal, appellant argues the trial court erred by admitting

evidence he was a member of the Aryan Brotherhood during the guilt-innocence phase of

trial. On appeal, appellant argues the evidence was inadmissible under Texas Rules of

Evidence 401 (definition of relevant evidence), 403 (exclusion of relevant evidence), 404

(inadmissibility of character evidence), and 405 (methods of proving character). See

TEX. R. EVID. 401, 403–05.      The gang-affiliation evidence consisted of appellant’s

statement during booking at the Matagorda County Jail that he was a member of the

Aryan Brotherhood and that he did not want to be jailed with any black people. The

evidence also included photographs of tattoos on appellant’s stomach and legs that

included a large swastika and lightning bolts.

      While evidence of other crimes, wrongs, or acts is inadmissible to prove the

character of a person in order to show action in conformity therewith, it may be admissible

for other purposes such as proof of motive. TEX. R. EVID. 404(b). Though motive is not

an element of aggravated assault with a deadly weapon, the prosecution may offer

evidence to show motive for the commission of the offense because it is relevant as a

circumstance to prove the commission of the offense. See Crane v. State, 786 S.W.2d

338, 349–50 (Tex. Crim. App. 1990). Once the opponent of extraneous-acts evidence

raises an appropriate character-evidence objection, the proponent of the evidence must

satisfy the trial court that the evidence has relevance apart from proving character


                                            8
conformity. Johnston v. State, 145 S.W.3d 215, 220 (Tex. Crim. App. 2004); Lopez v.

State, 200 S.W.3d 246, 252 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d.) (citing

Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991) (op. on reh’g)).

       After the State offered appellant’s statement and photographs of his tattoos,

showing Aryan Brotherhood affiliation, appellant objected on the grounds that they were

inadmissible at the guilt-innocence phase of trial because they constituted character

evidence. See TEX. R. EVID. 404, 405. The State countered contending the evidence

was relevant to show appellant’s motive for stabbing the complainant and to clarify the

identity of the perpetrator. This evidence is the only evidence of motive in the record.

Because the evidence raises an inference that appellant’s motive in stabbing the

complainant was to harm him because of his race, the trial court did not err in admitting

the evidence for the purpose of showing motive. See Vasquez v. State, 67 S.W.3d 229,

239–40 (Tex. Crim. App. 2002) (allowing ―Mexican Mafia‖ evidence to show motive);

McCallum v. State, 311 S.W.3d 9, 15–16 (Tex. App.—San Antonio 2010, pet. ref’d.)

(holding probative value of ―Aryan Brotherhood‖ affiliation evidence to show motive for

seemingly unprovoked attack outweighed danger of unfair prejudice); Garcia v. State, No.

13-97-458-CR, 1998 WL 34202279 at *6 (Tex. App.—Corpus Christi Aug. 13, 1998, no

pet.) (mem. op.) (not designated for publication) (discussing ―Tri-City Bombers‖

gang-affiliation evidence).

       Further, appellant gave multiple versions of what happened that day, one in which

he denied having been at the hotel when the complainant was stabbed. During the trial,

appellant’s counsel made repeated attempts to discredit the complainant’s memory


                                           9
regarding appellant’s identity. We conclude the evidence was also admissible to prove

identity. TEX. R. EVID. 404 (b); see Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App.

1996) (discussing admissibility of extraneous offenses to show identity); Arias v. State,

No. 04-09-00571-CR, 2010 WL 5541118 at *5–6 (Tex. App.—San Antonio Dec. 29, 2010,

pet. ref’d.) (mem. op.) (not designated for publication) (holding photographs of

gang-related tattoos admissible in showing identity).

      We do not reach appellant’s complaints under Texas Rules of Evidence 401 and

403 because these complaints were not made in the trial court and thus have not been

preserved for review. See TEX. R. APP. P. 33.1(a); TEX. R. EVID. 103(a)(1); Johnston,

145 S.W.3d 220 n.13 (holding a rule 404(b) objection does not preserve error for a rule

403 complaint); Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997) (same);

Montgomery, 810 S.W.2d at 388 (same). Appellant’s second issue is overruled.

                                    IV. CONCLUSION

      We affirm the trial court’s judgment.



                                                   ______________________
                                                   Gregory T. Perkes
                                                   Justice

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

Delivered and filed the
21st day of July 2011.




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