                                     COURT OF APPEALS
                                  EIGHTH DISTRICT OF TEXAS
                                       EL PASO, TEXAS

  WILLIAM ESTRADA,                                §
                                                                  No. 08-15-00271-CR
                     Appellant,                   §
                                                                     Appeal from the
  v.                                              §
                                                                   205th District Court
  THE STATE OF TEXAS,                             §
                                                                of El Paso County, Texas
                     Appellee.                    §
                                                                   (TC# 20130D01284)
                                                  §

                                          OPINION

       Appellant, William Estrada, was indicted and convicted for committing the offense of

murder by shooting Christian Duran with a firearm, a deadly weapon, with the intent to maintain

or participate as a member of a criminal street gang, Los Midnight Locos (LML). The jury

returned a sentence of confinement for 65 years.         Appellant raises five issues on appeal,

challenging the sufficiency of the evidence, the trial court’s charge to the jury, and the admission

of certain evidence during punishment. We affirm the trial court’s judgment.

                                        BACKGROUND

       Eighteen-year-old Christian Duran was shot outside his parents’ home around 7:15 p.m. on

January 28, 2013, and died. In the weeks before Duran’s death, his parents’ residence was tagged

by the Los Midnight Locos (LML) gang. Duran was a member of the Sureno 13/Southside Locos
gang, and the tagging specifically referenced Duran by his gang moniker, “Crazy.” Duran’s

tagged moniker, “Crazy,” was crossed out. Months earlier, Duran had reportedly stabbed Jose

Mendez, an LML gang member.

       On January 28, 2013, Appellant and Raul Calvetti drove in Appellant’s vehicle and picked

up Benjamin Bafun, all of whom are LML gang members. Appellant and Bafun had witnessed

Duran’s alleged stabbing of Mendez.

       Appellant took Bafun to his 3 p.m. dental appointment, and they later went to Calvetti’s

home. Appellant and Calvetti then left to drive Bafun home but Appellant, who was driving the

vehicle, stopped near Duran’s house when he passed by it and saw Duran’s car. Bafun, who was

in the back seat, did not know why they had stopped.

       Bafun saw Appellant grab something out of the glove box and exit the vehicle, and Calvetti

then moved into the driver’s seat while the vehicle was still running. Bafun heard gunshots, and

Appellant then ran back to the car and jumped into the back seat. Calvetti then drove away with

Bafun and Appellant seated in the back of the vehicle.

       The men stopped at Wing Stop and then a Walgreens store, and Appellant threw bullets

out the window as they traveled. Walgreens surveillance footage showed Appellant purchased

Gain detergent and bleach at 7:49 p.m. After the men left Walgreens, Appellant threw a gun in a

trash can, and then went to the home of another gang member, Francisco Gonzalez, where

Appellant showered and borrowed some clothes. Appellant then placed his clothing in a bag.

Appellant, Calvetti, and Bafun left Gonzalez’s home, and Appellant drove to a truck stop where

he exited the vehicle and burned his clothes. Appellant then took Bafun to a bar.

       At trial, Bafun testified to these facts, and stated that he, Appellant, and Calvetti did not


                                                2
discuss what had happened except when Appellant “apologized not for telling me what had

happened, like, without letting me know.” Appellant told Bafun he was sorry for not telling Bafun

what he and Calvetti had planned. Bafun testified that he had nothing to do with “it,” that there

had been no discussion with him regarding retaliation against Duran, and that he had never touched

the gun. Police did not promise Bafun anything for his testimony, and neither he nor Calvetti

were charged for Duran’s murder. Police recovered from Appellant’s vehicle a container of Gain

detergent, and also recovered burned clothing near the truck stop.            Cell phone tracking

corresponded to the general times and locations reflected in the testimony, and placed Appellant

in the area of Duran’s street at 7:16 p.m. Gunshot residue, which can be transferred by contact

with a person or something bearing gunshot residue, was confirmed on the back and right sleeve

of Calvetti’s black-hooded jacket, on the hood and back of Bafun’s “hoodie” and on the front and

back of his t-shirt, and on the front and inside waistband of Appellant’s pants. Duran’s father and

some of his neighbors testified regarding their observations and what they heard at the time of the

shooting.

                                          DISCUSSION

       Appellant presents five issues for our consideration.         In his first issue, Appellant

complains that the evidence does not support his conviction because “the testimony of the

accomplice witness” that Appellant was the shooter was not corroborated by other non-accomplice

evidence that tended to connect him to the offense. Appellant also asserts that the evidence is

legally insufficient to support a finding that he was a party to the offense. In Issue Two, Appellant

complains that the trial court failed to instruct the jury that Bafun was as a matter of law an

accomplice witness. In Issue Five, Appellant complains that the evidence was insufficient to


                                                 3
show he acted with the requisite intent to establish, maintain, or participate as a member of a

criminal street gang. See TEX. PENAL CODE ANN. § 71.02(a)(1)(West Supp. 2017).

       In addressing these three issues, we first determine whether Bafun was an accomplice

witness. The accomplice-witness statute provides that a conviction cannot be had upon the

testimony of an accomplice unless corroborated by other evidence tending to connect the defendant

with the offense committed, and the corroboration is not sufficient if it merely shows the

commission of the offense. TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). Because

Bafun was not an accomplice, the State was not required to corroborate his testimony.

       A person is an accomplice if he participates with the defendant before, during, or after the

commission of a crime and acts with the required culpable mental state. Druery v. State, 225

S.W.3d 491, 498 (Tex.Crim.App. 2007).               To be considered an accomplice witness,

the witness’s participation with the defendant must have involved some affirmative act that

promoted the commission of the offense with which the defendant is charged. Id. However,

a witness is not an accomplice witness merely because he knew of the offense and did not disclose

it, or even if he concealed it. Id. Additionally, a witness’s mere presence at the scene of the

crime does not render that witness an accomplice witness. Id. Nor does complicity with an

accused in the commission of another offense apart from the charged offense render

that witness’s testimony that of an accomplice witness. Id.

       A witness can be an accomplice as a matter of law or as a matter of fact. Ash v. State, 533

S.W.3d 878, 884 (Tex.Crim.App. 2017). “Whether a defendant is entitled to an accomplice-

witness instruction is a function of the evidence produced at trial.” Id.; Zamora v. State, 411

S.W.3d 504, 510 (Tex.Crim.App. 2013).


                                                4
       If the evidence presented by the parties is conflicting and it remains unclear whether

the witness is an accomplice, the trial court should allow the jury to decide whether the

inculpatory witness is an accomplice witness as a matter of fact under instructions defining the

term “accomplice.” Druery, 225 S.W.3d at 498–99. Thus, when the record contains evidence

that the witness may have been an accomplice, the trial court should submit the issue to the jury to

decide whether the witness was an accomplice as a matter of fact. Ash, 533 S.W.3d at 884.

       A witness is an accomplice as a matter of law when: (1) the witness has been charged

with the same offense as the defendant or a lesser-included offense; (2) the State charges

a witness with the same offense as the defendant or a lesser-included of that offense, but dismisses

the charges in exchange for the witness’s testimony against the defendant; or (3) the evidence is

uncontradicted or so one-sided that no reasonable juror could conclude that the witness was not

an accomplice. Ash, 533 S.W.3d at 886. A trial judge has no duty to instruct the jury that a

witness is an accomplice witness as a matter of law unless there exists no doubt that the witness is

an accomplice. See Druery, 225 S.W.3d at 498.

       Appellant requested that the trial court instruct the jury in its charge that Bafun was an

accomplice witness as a matter of law, and the trial court overruled the request. In its charge the

trial court defined “accomplice witness” and in part instructed the jury as follows:

       You are instructed that a conviction cannot be had upon the testimony of an
       accomplice unless corroborated by other evidence tending to connect the defendant
       with the offense committed; and the corroboration is not sufficient if it merely
       shows the commission of the offense. Proof that the Defendant was merely present
       in the company of the accomplice shortly before or after the time of the offense that
       was committed is not in itself sufficient corroboration of the accomplice’s
       testimony.
                                            . . .

       However, if you find, beyond a reasonable doubt, that an offense was committed

                                                 5
       and you further believe from the evidence that the witness, Benjamin Bafun, was
       an accomplice, or you have a reasonable doubt whether he was or not, as that term
       is defined in the foregoing instructions, then you cannot convict the defendant upon
       the testimony of Benjamin Bafun unless you further believe that there is other
       evidence in the case, outside of the testimony of Benjamin Bafun, tending to
       connect the defendant with the offense charged in the indictment, and then from all
       the evidence you must believe beyond a reasonable doubt that the defendant is
       guilty.

The evidence regarding Bafun shows that before the shooting, Bafun had no discussion regarding

getting even with Duran, and he was uncertain why Appellant stopped at Duran’s house while

driving Bafun home. Bafun observed Appellant retrieve something from the glove box and exit

the vehicle.   After Calvetti entered the driver’s seat, Bafun heard gunshots, and observed

Appellant running back to the car and entering the back seat. Although present, Bafun never

touched the gun, and did not help dispose of the Appellant’s clothing or the gun. According to

Bafun, he had no discussions about getting even with Duran.

       Bafun was described as being 5’11” and much bigger than Appellant and Calvetti, and both

Bafun and Appellant were lighter skinned than Calvetti. Appellant was approximately 6’1” or

6’2,” and Calvetti was estimated to be 5’9” or 5’10” tall, and thinner than Bafun.

       One witness described the runner as thin and a bit tall, about 5’10,” and “flying,” after shots

were fired. Another witness who heard the shooting described the running man as 5’8” to 5’11,”

and not “chunky.” A third witness who saw the shooting described the shooter as having a height

of 5’7” to 5’9.”

       After Duran was shot, Appellant entered the back seat of his vehicle where Bafun was

seated while Calvetti drove. The evidence showed that gunshot residue, such as that identified as

being present on the hood and back of Bafun’s clothing, may be transferred by touch and may have

been transferred from another source at another time, even as much as one year earlier. And

                                                 6
although Bafun admitted his gang affiliation with LML and was confirmed by police to be a gang

member, the evidence merely showed Bafun’s presence, and no affirmative act of assistance in

committing Duran’s murder.

       This and other evidence does not show that Bafun affirmatively assisted in committing the

offense of murder. Moreover, Bafun was not an accomplice as a matter of law because: (1) he

was not charged with either the same offense as Appellant or a lesser-included offense; (2) the

State did not dismiss such charges in exchange for Bafun’s testimony against Appellant; and (3)

the evidence is not so “uncontradicted or so one-sided” that any reasonable juror would have

concluded that Bafun was an accomplice as a matter of law. See Ash, 533 S.W.3d at 886. The

trial court was therefore under no duty to instruct the jury that Bafun was an accomplice witness as

a matter of law. Druery, 225 S.W.3d at 498. Issue Two is overruled.

                                Legal Sufficiency of the Evidence

       When reviewing the sufficiency of the evidence, we consider all of the evidence in the light

most favorable to the verdict and determine whether any rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979). This standard “gives full play to

the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id. at 319, 99

S.Ct. at 2789. The reviewing court’s duty is to ensure that the evidence presented supports the

jury’s verdict and that the State has presented a legally sufficient case of the offense

charged. Queeman v. State, 520 S.W.3d 616, 622 (Tex.Crim.App. 2017). When the record

supports contradicting inferences, the court “must presume that the jury resolved any such conflicts


                                                 7
in favor of the verdict, even if not explicitly stated in the record.” Id. We review “all of the

evidence” and consider evidence “both properly and improperly admitted.” Jenkins v. State, 493

S.W.3d 583, 599 (Tex.Crim.App. 2016). When the jury returns a general verdict and the evidence

supports a guilty finding under any of the allegations submitted, we will uphold the

verdict. Rabbani v. State, 847 S.W.2d 555, 558 (Tex.Crim.App. 1992).

                                 Evidence of Principal Actor Status

         The accomplice-witness statute provides that a conviction cannot be had upon the

testimony of an accomplice unless corroborated by other evidence tending to connect the defendant

with the offense committed, and the corroboration is not sufficient if it merely shows the

commission of the offense. TEX. CODE CRIM. PROC. ANN. art. 38.14. Because Bafun was not an

accomplice, the State was not required to corroborate his testimony.

         Bafun’s testimony, without corroboration, is legally sufficient to support the jury’s verdict

if it believed Appellant to be guilty as the principle actor. In addition to the evidence recited

above, the jury had before it evidence that Appellant had a motive for retaliating against Duran

after he witnessed Duran’s attack of Jose Mendez, another LML gang member, that Appellant had

apologized to Bafun after killing Duran for not informing Bafun of Appellant’s and Calvetti’s plan,

that Appellant had disposed of the gun and destroyed other evidence, and had other evidence to

consider, including cell phone records that placed Appellant near the Duran residence at relevant

times.

         The Texas Penal Code provides that a person is criminally responsible as a party to an

offense if the offense is committed by his own conduct, by the conduct of another for which he is

criminally responsible, or by both. TEX. PENAL CODE ANN. § 7.01(a)(West 2011). Each party


                                                  8
to an offense may be charged with commission of the offense and each party to an offense may be

charged and convicted without an allegation that he acted as a principal or accomplice, distinctions

which have been abolished. See TEX. PENAL CODE ANN. § 7.01(b), (c)(West 2011). A person is

criminally responsible for an offense committed by the conduct of another if acting with intent to

promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts

to aid the other person to commit the offense. TEX. PENAL CODE ANN. § 7.02(a)(2)(West 2011).

       Evidence can be sufficient to convict under the law of parties where a defendant “is

physically present at the commission of the offense and encourages its commission by words or

other agreement.” Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App. 1996) (op. on reh’g).

“In determining whether the accused participated as a party, the court may look to events occurring

before, during and after the commission of the offense, and may rely on actions of the defendant

which show an understanding and common design to do the prohibited act.” Id. (citing Cordova

v. State, 698 S.W.2d 107, 111 (Tex.Crim.App. 1985)). Additionally, circumstantial evidence may

be used to prove identity and party status. See id.; Jenkins, 493 S.W.3d at 599; Gross v. State, 380

S.W.3d 181, 186 (Tex.Crim.App. 2012). “Circumstantial evidence is as probative as direct

evidence in establishing guilt, and circumstantial evidence alone can be sufficient.” Jenkins, 493

S.W.3d at 599. However, mere presence at the scene of the crime, or even flight from the scene,

without more, is insufficient to support a conviction as a party. Gross, 380 S.W.3d at 186.

       The trial court’s charge instructed the jury that a person is criminally responsible for an

offense committed by the conduct of another if, acting with intent to promote or assist the

commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person




                                                  9
to commit the offense. See TEX. PENAL CODE ANN. § 7.02(a)(2). The charge also instructed the

jury that mere presence at the scene of an offense will not make a person a party to an offense.

        Applying the law of parties to the offense of murder under Section 19.02(b)(1) and to the

evidence as it relates to the indictment, Appellant is criminally responsible as a party to this offense

if, acting with the intent to promote or assist in the commission of the murder of Christian Duran

by Raul Calvetti, Appellant solicited, encouraged, directed, aided, or attempted to aid Raul Calvetti

to commit the murder, and Raul Calvetti, intentionally or knowingly caused Christian Duran’s

death by shooting him with a firearm. TEX. PENAL CODE ANN. § 19.02(b)(1)(West 2011). The

trial court instructed the jury:

                If you unanimously find, beyond a reasonable doubt, that on or about
        January 28, 2013, in El Paso County, Texas, the Defendant, William Estrada, did
        then and there with the intent to maintain or participate as a member of a criminal
        street gang, to wit: Los Midnight Locos (“LML”), commit the offense of Murder
        against Christian Duran, by shooting Christian Duran with a firearm; and that the
        defendant did then and there use or exhibit a deadly weapon, to wit: a firearm,
        during the commission of or immediate flight from said offense,
        OR
                If you find from the evidence beyond a reasonable doubt that on or about
        January 28, 2013, in El Paso County, Texas, the Defendant, William Estrada, with
        the intent to maintain or participate as a member of a criminal street gang, to wit:
        Los Midnight Locos (“LML”), acting as a party, by soliciting, encouraging,
        directing, aiding or attempting to aid Raul Calvetti, did then and there commit the
        offense of Murder as a party against Christian Duran by driving Raul Calvetti to
        Christian Duran’s house so that Raul Calvetti could murder Christian Duran by
        shooting him with a firearm,
        THEN you must find the defendant “guilty” (Verdict Form B).
        The jury could have believed that Appellant was guilty as a party based on evidence that

he and fellow LML gang member Calvetti planned Duran’s death, that Appellant acted to promote

or assist commission of the offense by driving Calvetti to Duran’s residence, and if believed by

the jury, that Calvetti was the shooter based on the witness’s descriptions. Viewed in the light
                                               10
most favorable to the verdict, deferring to the jury’s determinations of the weight to be given the

evidence and credibility of the witnesses, the evidence supports the jury’s verdict of guilt, whether

the jury believed Appellant was guilty as the principal actor or as a party. Issue One is overruled.

                                    Evidence of Requisite Intent

       In Issue Five, Appellant contends the evidence was insufficient to prove that he committed

the charged offense with the intent to maintain or participate as a member of a criminal street gang

because no evidence shows that Appellant, Bafun, and Calvetti or any other LML acted with intent

to participate in a gang when Duran was murdered. Appellant asserts the legal sufficiency

standard in Jackson, 443 U.S. at 319, 99 S.Ct. at 2789 applies in making this determination.

       In its charge, the trial court instructed the jury that it could find Appellant guilty as a

principal actor or a party if Duran’s murder was committed with the intent to maintain or

participate as a member of the Los Midnight Locos (LML) criminal street gang. Evidence and

testimony showed that: (1) LML was a criminal street gang having a “history of criminal offenses

ranging from narcotics possession to distribution, to graffiti, thefts, aggravated assaults, assaults,

robberies, engaging in organized criminal activity, to include murder[;]” (2) Appellant, Bafun, and

Calvetti were confirmed gang members of LML; (3) Duran was a member of a rival criminal street

gang, Southside Locos; (4) Appellant had witnessed Duran’s stabbing attack on Jose Mendez, who

was Appellant’s fellow LML gang member; (5) prior to his death, Duran’s residence had been

tagged by LML which included the writing out of Duran’s gang monker, “Crazy,” which was also

crossed out; and (6) after shooting Duran, Appellant apologized to Bafun because Appellant and

Calvettii had not informed him of their plan beforehand. Viewing this evidence in the light most

favorable to the verdict, we conclude any rational trier of fact could have found the essential


                                                 11
elements of the crime beyond a reasonable doubt to include a determination that Appellant

committed Duran’s murder with the intent to maintain or participate as a member of a criminal

street gang. Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App. 1992); McDuff v. State, 939

S.W.2d 607, 614 (Tex.Crim.App. 1997). Issue Five is overruled.

       In Issue Three, Appellant contends the trial court’s charge erroneously instructed the jury

that it could find Appellant guilty either as the principal actor or as a party because neither theory

was clearly supported.     In support of this contention, Appellant contends the evidence was

insufficient to allow the jury to determine that he was guilty as a party, and in choosing to permit

the jury to determine whether Appellant was guilty as a party, the trial court should have required

the jury to decide unanimously whether Appellant was guilty as a principal or as a party.

       An instruction on the law of parties may be given whenever there is sufficient evidence to

support a jury verdict that the defendant is criminally responsible under the law of

parties. Ladd v. State, 3 S.W.3d 547, 564-65 (Tex.Crim.App. 1999). The law of parties need not

be pleaded in the indictment. Marable v. State, 85 S.W.3d 287, 287 (Tex.Crim.App. 2002).

       As we have determined above, the evidence was sufficient to sustain Appellant’s

conviction as a principal actor or as a party to the commission of the offense of murder.

Therefore, we cannot conclude the trial court erred in instructing the jury on the law of parties.

And if, as Appellant asserts, there was no evidence tending to show his guilt as a party, the jury

almost certainly would not have relied on the trial court’s law-of-parties instruction in arriving at

its verdict, basing its verdict instead on the evidence tending to show his guilt as the principal

actor. See Ladd, 3 S.W.3d at 565. The trial court did not err in submitting the principal-actor

and party theories to the jury. See Goff v. State, 931 S.W.2d 537, 544-45 (Tex.Crim.App. 1996).


                                                 12
          Regarding Appellant’s contention that the trial court erred when it instructed the jury on

the law of parties because it did not instruct the jury that it must unanimously decide whether

Appellant was guilty as a principal actor or as a party, the Court of Criminal Appeals has ruled

that where, as in this case, “the evidence is compelling that an accused is guilty of every constituent

element of the alleged penal offense – either as a principal actor or under some theory of party

liability – but there remains evidentiary play with respect to his precise role in that offense,” it

would be plainly absurd to require the jury to acquit the accused unless it can unanimously

determine his status as a principal actor or a party and, if the latter, what his exact party

accountability might be. Leza v. State, 351 S.W.3d 344, 357 (Tex.Crim.App. 2011)(agreeing with

courts of appeal that “the Legislature did not intend that a jury should have to

achieve unanimity with respect to whether an accused was guilty of capital murder as

a principal actor or as a party, or with respect to any particular statutory alternative by which he

might be found liable as a party”). We agree. Because the trial court did not err in providing the

complained-of instructions to the jury, Issue Three is overruled.

          In Issue Four, Appellant contends the trial court erred when it admitted in evidence during

the punishment phase of trial Appellant’s hand-written letter. In a portion of the letter, Appellant

states:

          When I get out ima [sic] finish my school and try to open up my own business.
          I’ve always bin [sic] a self made man. Never needa [sic] anyone to get me what I
          needed. If I can’t do it then I have no choice but to get back to the basics. Ain’t
          nothing I know better than bleeding the block. I really don’t want to but you know
          once your yoused [sic] to living a sertain [sic] way its [sic] hard getting comfturble
          [sic] with anything less.

          After the State presented the letter to the trial court for its consideration, Appellant’s

counsel stated, “[I]t worries me from a relevancy perspective[.]” He later asserted outside the

                                                   13
presence of the jury that the prejudice of admitting the letter far outweighed its probative value

because the meaning of “bleeding the block” was unknown, and noted that it would require

speculation.    After the trial court ruled that the letter was admissible, Appellant raised a

speculation objection to the inclusion of the sentence, “Ain’t nothing -- I know better than bleeding

the block[,]” noting that he believed “the reference really is . . . more of a Shawshank Redemption

type of thing, selling goods and stuff like that[,]” but expressed concern that the jury could believe

it was a reference to violence in the absence of a gang or jail expert to explain the term, and argued

that the prejudice of the sentence far outweighed its probative effect. Appellant also informed the

trial court that if it admitted the letter in evidence, he objected to any attempt by the State to explain

the term to the jury. The trial court overruled the objection.

        Unlike his contentions at trial, on appeal, Appellant contends the jury likely interpreted his

statement as meaning that he would “continue to seek blood or injure or kill in the future.” He

argues that the trial court erred in admitting the letter because its meaning is unclear, and thus it

was not probative, and because the evidence had the tendency to both “suggest a decision on an

improper basis” and be given undue weight by the jury which, purportedly, was not “equipped” to

evaluate the probative force of the evidence. Asserting that there is no fair assurance that this

evidence did not influence the jury, Appellant asserts his substantial rights were affected, and he

was harmed by the admission of this evidence. We disagree.

                                          Standard of Review

        The trial court has broad discretion to determine the admissibility of evidence at the

punishment phase of trial. Cooks v. State, 844 S.W.2d 697, 735 (Tex.Crim.App. 1992).

Accordingly, we review a trial court’s decision to admit or exclude evidence during the punishment


                                                   14
phase of a trial under an abuse of discretion standard. Mitchell v. State, 931 S.W.2d 950, 953

(Tex.Crim.App. 1996). A trial court abuses its discretion when its decision lies outside the zone

of reasonable disagreement. Martinez v. State, 327 S.W.3d 727, 736 (Tex.Crim.App. 2010). We

may not substitute our own decision for that of the trial court. Moses v. State, 105 S.W.3d 622,

627 (Tex.Crim.App. 2003).

                                             Relevance

       Relevant evidence is generally admissible but irrelevant evidence is not. TEX. R. EVID.

402 (“Relevant evidence is admissible unless any of the following provides otherwise: the United

States or Texas Constitution; a statute; these rules; or other rules prescribed under statutory

authority. Irrelevant evidence is not admissible.”). Unlike the guilt phase of trial, during the

punishment phase there are “no distinct ‘facts ... of consequence’ that proffered evidence can be

said to make more or less likely to exist.”           Ellison v. State, 201 S.W.3d 714, 718–19

(Tex.Crim.App. 2006)(citing Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App. 1999)).

       Admissibility of evidence at punishment is more a matter of policy than of “logical

relevance.” Ellison, 201 S.W.3d at 719. During the punishment phase, “[t]he jury is concerned

... with evaluating a defendant’s background and character independent of the commission of the

crime on trial.” Sparkman v. State, 580 S.W.2d 358, 360 (Tex.Crim.App. 1979). In this phase,

the State and the defendant may offer evidence as to any matter the court deems relevant to

sentencing, including but not limited to the defendant’s general reputation as well as his character.

TEX. R. EVID. 401; TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1)(West Supp. 2017).

Determining what is relevant is a question of what is helpful to the jury in determining the

appropriate sentence for a particular defendant in a particular case. McGee v. State, 233 S.W.3d


                                                 15
315, 318 (Tex.Crim.App. 2007)(quoting Rodriguez, 203 S.W.3d at 842); Rogers, 991 S.W.2d at

265.

           The test for relevancy is much broader during the punishment phase because it allows a

jury to consider more evidence in exercising its discretion to assess punishment within the

appropriate range. See Murphy v. State, 777 S.W.2d 44, 63 (Tex.Crim.App. 1989)(op. on reh’g).

However, the trial court must still restrict the admission of evidence to that which is relevant to

sentencing and must operate within the bounds of the Texas Rules of Evidence, including Rule

403. Ellison, 201 S.W.3d at 722.

                                                Rule 403

           If the probative value of the relevant evidence is substantially outweighed by the danger of

unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting

cumulative evidence, the evidence is inadmissible under Rule 403. TEX. R. EVID. 403; see Davis

v. State, 329 S.W.3d 798, 806 (Tex.Crim.App. 2010); Montgomery v. State, 810 S.W.2d 372, 387

(Tex.Crim.App. 1991)(op. on reh’g). The rule favors the admission of all relevant evidence and

carries a presumption that relevant evidence will be more probative than prejudicial. Threadgill

v. State, 146 S.W.3d 654, 670–71 (Tex.Crim.App. 2004). Consequently, the defendant bears the

burden of demonstrating that the danger of unfair prejudice substantially outweighs the probative

value. See Grant v. State, 475 S.W.3d 409, 420–21 (Tex.App.--Houston [14th Dist.] 2015, pet.

ref’d)).

           The term “probative value” refers to the inherent probative force of an item of evidence—

that is, how strongly it serves to make more or less probable the existence of a fact of consequence

to the litigation—coupled with the proponent’s need for that item of evidence. Davis v. State, 329


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S.W.3d 798, 806 (Tex.Crim.App. 2010)(citations omitted). The term “‘[u]nfair prejudice’ refers

to a tendency to suggest decision on an improper basis, commonly, though not necessarily, an

emotional one.” Id. All testimony and physical evidence are likely be prejudicial to one party

or the other. Id. Rule 403 is applicable only when there exists a clear disparity between the

degree of prejudice of the offered evidence and its probative value. Id. In conducting its Rule

403 determination, the trial court or a reviewing court considers, but is not limited to, the following

factors: (1) the probative value of the evidence; (2) the potential to impress the jury in some

irrational, yet indelible, way; (3) the time needed to develop the evidence; (4) the proponent’s need

for the evidence. Erazo v. State, 144 S.W.3d 487, 489 (Tex.Crim.App. 2004).

       As determined by the courts of this state, character evidence may exist in many forms,

including a defendant’s choice of tattoos, Conner v. State, 67 S.W.3d 192, 201 (Tex.Crim.App.

2001), or a defendant’s writings such as a letter, Green v. State, 934 S.W.2d 92, 104

(Tex.Crim.App. 1996). In his hand-written letter that was admitted in evidence during the

punishment phase of trial, Appellant specifically addresses his future intentions after being freed

from incarceration. Although the letter expresses Appellant’s willingness to return to a familiar

way of life by “bleeding the block,” it also expresses Appellant’s desire to engage in business.

Appellant’s letter was prejudicial, but it was not unduly so, as it was highly probative of his

character.

       This evidence was relevant because it was helpful to the jury in determining an appropriate

sentence for Appellant, it was probative of Appellant’s character, and the probative value of the

letter was not substantially outweighed by the danger of undue prejudice or misleading the jury.

TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1). The trial court’s evidentiary ruling was not


                                                  17
erroneous.

       Even if admission of this evidence was erroneous, it was non-constitutional error that did

not harm Appellant’s substantive rights and was harmless in light of the other evidence which

showed Appellant’s gang-related planning and execution of Duran’s murder. See Walters v.

State, 247 S.W.3d 204, 221 (Tex.Crim.App. 2007). Issue Four is overruled.

                                        CONCLUSION

       The trial court’s judgment is affirmed.


                                             YVONNE T. RODRIGUEZ, Justice
June 29, 2018

Before McClure, C.J., Rodriguez, and Hughes, JJ.
Hughes, J., not participating

(Do Not Publish)




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