                                                                                     ACCEPTED
                                                                                 01-13-00227-CR
                                                                      FIRST COURT OF APPEALS
                                                                              HOUSTON, TEXAS
                                                                           7/13/2015 12:54:54 PM
                                                                           CHRISTOPHER PRINE
                                                                                          CLERK



                        NO. 01-13-00227-CR
                                                               FILED IN
                   IN THE COURT OF APPEALS              1st COURT OF APPEALS
                FOR THE FIRST DISTRICT OF TEXAS             HOUSTON, TEXAS
                                                        7/13/2015 12:54:54 PM
                                                        CHRISTOPHER A. PRINE
                                                                 Clerk
                   JEREMY DION WASHINGTON
                           Appellant
                                 v.
                       THE STATE OF TEXAS
                             Appellee



               On Appeal from Cause Number 1862655
   In the 8th County Criminal Court at Law of Harris County, Texas



                      BRIEF FOR APPELLANT


ORAL ARGUMENT REQUESTED                     ALEXANDER BUNIN
                                            Public Defender
                                            Harris County, Texas
                                            MARK KRATOVIL
                                            Assistant Public Defender
                                            Texas Bar Number 24076098
                                            1201 Franklin Street, 13th Floor
                                            Houston, Texas 77002
                                            Telephone: (713) 274-6728
                                            Facsimile: (713) 437-4339
                                            mark.kratovil@pdo.hctx.net
                                            Counsel for Appellant
                  IDENTITY OF PARTIES AND COUNSEL

APPELLANT                                Jeremy Dion Washington
                                         SPN 02368559
                                         6030 Kennelwood
                                         Houston, Texas

DEFENSE COUNSEL AT TRIAL                 Brock White
                                         801 Congress St., Suite 215
                                         Houston, Texas 77002
PROSECUTOR AT TRIAL                      Allison Buess
                                         Assistant District Attorney
                                         Anateya Adeygia
                                         Assistant District Attorney
                                         Harris County, Texas
                                         1201 Franklin Street
                                         Houston, Texas 77002
PRESIDING JUDGE                          The Honorable Jay Karahan
                                         8th County Criminal Court
                                         1201 Franklin Street, 9th Floor
                                         Houston, Texas 77002
APPELLANT’S COUNSEL                      Mark Kratovil
                                         Assistant Public Defender
                                         Harris County, Texas
                                         1201 Franklin Street, 13th Floor
                                         Houston, Texas 77002




                                 ii
                                                 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .................................................................................. ii
TABLE OF CONTENTS ............................................................................................................ iii
INDEX OF AUTHORITIES ........................................................................................................ v
STATEMENT OF THE CASE ..................................................................................................... 1
ISSUES PRESENTED ................................................................................................................. 4
STATEMENT OF FACTS............................................................................................................ 4
SUMMARY OF THE ARGUMENT .............................................................................................. 9
ARGUMENT ............................................................................................................................ 11
          ISSUE ONE: Officer Sullivan’s inability to properly articulate the methodology
          that he relies on to identify members of street gangs rendered his expert
          testimony unreliable under Texas Rules of Evidence 702, and the trial court
          erred in permitting him to testify as an expert witness. . .................................... 11
     A. Defense Counsel Preserved Error By Objecting To Officer Sullivan's Testimo-
        ny, Requesting a Daubert Hearing, And Renewing the Objection At the Close
        Of the Hearing .......................................................................................................... 11

     B. Under Texas Rules Of Evidence 702, An Expert Must Be Qualified To Testify
        On the Relevant Subject Matter .............................................................................. 12

     C. Officer Sullivan Could Not Articulate the Methodology He Used To Identify
        Gang Members, And Explained That He Relied Almost Entirely On a Com-
        puter Program............................................................................................................ 13

     D. The Appellant Suffered Harm As Sullivan's Unreliable Conclusions Invaded
        the Jury's Province As the Trier Of Fact ............................................................... 15


          ISSUE TWO: The trial court erred in admitting State’s Exhibits 24, 25, and 26—
          photos printed from the internet of various gang symbols—as these exhibits
          were not properly authenticated.................................................................................x




                                                                  iii
     A. Defense Counsel Preserved Error By Objecting When the State Sought To En-
        ter the Exhibits Into Evidence ................................................................................ 16

     B. Photographs Must Be Shown To Properly Represent the Object In Question
        By Any Witness Who Knows the Underlying Facts Portrayed In the Photos . 18

     C. There Is Insufficient Evidence In the Record That State's Exhibits 24, 25, and
        26 Are a Correct Representation Of the Facts Portrayed.................................... 18

     D. The Appellant Suffered Harm As the Introduction Of the Unauthenticated Im-
        ages Allowed the Jury To Draw Unsubstantiated Connections Between the Ex-
        hibits And the Appellant's Alleged Gang Membership........................................ 20

PRAYER ................................................................................................................................... 21
CERTIFICATE OF SERVICE .................................................................................................... 22
CERTIFICATE OF COMPLIANCE ........................................................................................... 23




                                                                     iv
                                           INDEX OF AUTHORITIES

Cases

Campbell v. State, 382 S.W.3d 545 (Tex. App.—Austin 2012, no pet.) ........................... 18

Daubert v. Merrell Dow Pharm., 509 U.S. 579, 590 (1993)............................................. 12, 13

Everitt v. State, 407 S.W.3d 259 (Tex. Crim. App. 2013) .................................................. 17

Ford v. State, 305 S.W.3d 530 (Tex. Crim. App. 2009) ...................................................... 17

Harris v. State, 133 S.W.3d 760 (Tex. App.—Texarkana 2004, pet. ref’d) ..................... 15

Hernandez v. State, No. 03-04-00356-CR, 2006 WL 191918, at *6 (Tex. App.—Austin

   Jan. 26, 2006, pet. ref’d) (not designated for publication) ........................................... 19

Huffman v. State, 746 S.W.2d 212 (Tex. Crim. App. 1988) ............................................... 18

King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000) ........................................................ 11

Lankston v. State, 827 S.W.3d 907 (Tex. Crim. App. 1992) .............................................. 17

Nenno v. State, 970 S.W.2d 549 (Tex. Crim. App. 1998) ................................................... 14

Penry v. State, 903 S.W.3d 715 (Tex. Crim. App. 1995)..................................................... 13

Roise v. State, 7 S.W.3d 225 (Tex. App.—Austin 1999, pet. ref’d) .................................. 14

Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012)................................................... 18

Vela v. State, 209 S.W.3d 128 (Tex. Crim. App. 2006) ..................................................... 11

Statutes & Rules

Tex. R. App. Proc. Rule 33.1 ........................................................................................ 12, 17

Tex. R. App. Proc. Rule 44.2 ........................................................................................ 15, 20



                                                             v
Tex. R. Evid. Rule 702 ................................................................................................... 12, 13

Tex. R. Evid. Rule 705 ......................................................................................................... 14

Tex. R. Evid. Rule 901 ................................................................................................... 18, 19

Tex. Penal Code § 46.02 .......................................................................................... 11, 15, 20

Tex. Penal Code § 71.01 ...................................................................................................... 20




                                                                vi
                                  STATEMENT OF THE CASE

       The Harris County District Attorney’s Office charged Jeremy Washington

(“Appellant”) by information on November 16, 2012, with one count of unlawful car-

rying of a weapon. (C.R. at 3).1 Specifically, the Appellant was alleged to have been in

possession of a handgun in a motor vehicle while the Appellant was a member of a

criminal street gang. Id.

       Voir dire began on February 18, 2013, and a six-person jury was empanelled on

that same day. (2 R.R. at 91-92). Following a two-day trial on guilt-innocence, the ju-

ry returned a guilty verdict. (4 R.R. at 84-86; C.R. at 57-59). The punishment phase

began immediately after the verdict was rendered, and the trial court assessed the Ap-

pellant’s punishment at one year confinement in the Harris County Jail, with the sen-

tence suspended and the Appellant placed on community supervision for a period of

two years. (4 R.R. at 89-94; C.R. at 58-63). A timely Notice of Appeal was filed by the




1
  As will be explained in as much detail as possible, the record in this case is unusually dense and
complicated for a misdemeanor trial. The record in the present case contains five volumes of the
Reporter’s Record and one volume of the Clerk’s Record from the Appellant’s actual trial. Two ver-
sions of the Reporter’s Record from the Appellant’s trial were filed with the Court of Appeals. Cita-
tions to the Reporter’s Record in this brief refer to the version filed with the First Court of Appeals
on July 14, 2014. The record also contains two volumes of Reporter’s Records from show cause
hearings held on March 26, 2014, and April 16, 2014, before the First Court of Appeals. In addition,
there was a lengthy series of show cause and abatement hearings held before the 10th Country Crim-
inal Court at Law, which are included in the record. In an effort to be as clear as possible, any cita-
tions to the Reporter’s Record from the show cause and abatement hearings will explicitly state the
date of the hearing to which the citation is referring. Unless otherwise noted, a citation to the Re-
porter’s Record or Clerk’s Record without further clarification can safely be assumed to refer to the
record from the Appellant’s trial.


                                                  1
Appellant and certified by the trial court on February 21, 2013. (C.R. at 68, 70-71). A

Motion for New Trial was not filed in the Appellant’s case.

      The present case is one of nine cases where Sondra Humphrey served as the

court reporter, which were all abated to determine whether a complete Reporter’s

Record could be assembled. (Feb. 26, 2015, Abatement Hearing, R.R. at 4). On

March 26, 2014, this Court convened for a hearing on the Court’s Order to File Re-

porter’s Record or Show Cause Hearing, which ordered Ms. Humphrey to file a Re-

porter’s Record with the Court of Appeals in the present case by March 24, 2014.

(March 26, 2014, Show Cause Hearing, R.R. at 6-9). Ms. Humphrey did not appear at

this hearing. (March 26, 2014, Show Cause Hearing, R.R. at 2-4). On April 16, 2014,

this Court held a second Show Cause hearing, where Ms. Humphrey appeared with

her attorney, Lott Brooks. At this hearing, Mr. Brooks represented to this Court that

a Reporter’s Record would be filed within the next twenty-four hours. (April 16, 2014,

Show Cause Hearing, R.R. at 4). Ms. Humphrey testified before this Court and cited

her need for an emergency medical procedure on March 31, 2014, as the reason for

her non-appearance at the initial hearing. Id. at 8. This Court declined to enter an or-

der of contempt against Ms. Humphrey at the close of the hearing. Id. at 15.

      On April 24, 2014, the first in a series of abatement hearings was held before

Judge Sherman Ross in the 10th County Criminal Court at Law per this Court’s

Abatement Order. (April 24, 2014, Abatement Hearing, R.R. at 4). The majority of

this hearing concerned the state of the record in two other misdemeanor cases in

                                           2
which the Appellant was not a party. Id. at 4-5. Ms. Humphrey cited numerous per-

sonal and medical issues as the reason for the delay in turning in the Reporter’s Rec-

ord in these particular cases and assured the court that the records would be complet-

ed within the next two weeks. Id. at 8-13.

       The next abatement hearing was held before Judge Ross on May 2, 2014. Ms.

Humphrey informed the court that the record in the Appellant’s case would be filed

on that day by 5:00 p.m. (May 2, 2014, Abatement Hearing, R.R. at 4). Although sev-

eral hearings were held in the interim, the next substantive hearing impacting the Ap-

pellant’s case was not until June 30, 2014. In that hearing, Mr. Brooks informed the

court that the record in the Appellant’s case had been completed. (June 30, 2014,

Abatement Hearing, R.R. at 6). However, in a follow-up abatement hearing on July 7,

2014, the court was informed by the State that the record in the Appellant’s case was

“missing the charge conference, closing arguments, verdict and punishment phase.”

(July 7, 2014, Abatement Hearing, R.R. at 4-5).

       It was not until February 17, 2015, that a complete record in the Appellant’s

case was filed with this Court. On that day, the State and the Appellant filed a Joint

Motion to Reinstate Appeal.2




2
 A copy of this motion is not included in the record for the Appellant’s case. However, it may be
viewed on the case information page for this case or at the following link:
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=9b280565-3cd7-4a43-a3c8-
f6731171c376&coa=coa01&DT=Motion&MediaID=be99fb57-6a10-4ae0-ba8a-235ba4c94b4b


                                                 3
      Findings of Fact were entered by Judge Sherman Ross on February 27, 2015.

(Supplemental C.R. at 5-11). In these findings, Judge Ross determined that the record

in the present case “is currently acceptable for purposes of returning the case to the

Court of Appeals active docket.” (Supplemental C.R. at 11). While the Reporter’s

Record does contain a handful of obvious typographical errors during the testimony

of witnesses, these problems do not appear to be so prevalent as to render the record

unreliable or incomplete.

      On March 17, 2015, this Court reinstated the Appellant’s case onto its active

docket. This appeal followed.

                                 ISSUES PRESENTED

             ISSUE ONE: Officer Sullivan’s inability to properly
             articulate the methodology that he relies on to identify
             members of street gangs rendered his expert testimony
             unreliable under Texas Rules of Evidence 702, and the trial
             court erred in permitting him to testify as an expert
             witness.
             ISSUE TWO: The trial court erred in admitting State’s Ex-
             hibits 24, 25, and 26—photos printed from the internet of
             various gang symbols—as these exhibits were not properly
             authenticated.

                                STATEMENT OF FACTS

       Officer Gordon Sullivan with the Houston Police Department was on patrol

in the southeastern part of Houston on October 4, 2011, when he drove past the Ap-

pellant on Interstate 610. The car the Appellant was driving appeared to have an ex-

pired registration tag, which prompted Sullivan to conduct a traffic stop of the Appel-


                                          4
lant. (2 R.R. at 117-118). Upon further inspection, Sullivan discovered that the Appel-

lant’s registration had been expired for only a few days and the Appellant claimed that

he was at that moment on his way to renew the car’s registration. (3 R.R. at 20). The

traffic stop was routine at first, with Sullivan confirming the Appellant’s identification

and that he did not have any warrants out for his arrest. But according to Sullivan, the

Appellant was wearing all blue and had a blue bandana in the center console of his

car. (2 R.R. at 119).

       Based on the Appellant’s clothing, Sullivan shifted the focus of the traffic stop

into a different direction and bluntly asked the Appellant whether he was a gang

member. The Appellant told Sullivan that he was a former member of the 52 Hoo-

vers-Crips. At the request of Sullivan, the Appellant got out of his car and showed

Sullivan several tattoos, which Sullivan believed reflected the Appellant’s affiliation

with the 52 Hoovers-Crips. (2 R.R. at 119-121). Although Sullivan had been patrol-

ling this particular area of Houston for about three years as a member of a crime re-

duction unit, this was the first time that Sullivan had encountered the Appellant. (3

R.R. at 16-17). Indeed, an investigation of the Appellant’s background by Sullivan did

not reveal that the Appellant had ever been arrested, charged, or convicted for a crim-

inal offense. (3 R.R. at 27). Sullivan described the Appellant as “Very cooperative”

and “chilled” during the entirety of the traffic stop. (2 R.R. at 120; 3 R.R. at 14). In

Sullivan’s experience, members of street gangs are not typically cooperative with him

in his capacity as a police officer. (3 R.R. at 22). Further, the Appellant showed Sulli-

                                            5
van his work identification card, showing that the Appellant was employed as a securi-

ty officer with MED Security University General. (3 R.R. at 22-23). A search of the

Appellant’s vehicle found some marijuana seeds and stems, but no usable amount of

marijuana was located. (3 R.R. at 13).

      At this point, Sullivan decided to let the Appellant leave without arresting him

or issuing a citation. However, Sullivan did document the traffic stop and entered in-

formation about the Appellant and his car into a program called “Gang Tracker.” And

just as the name would lead one to believe, Gang Tracker is a program used to identi-

fy and track gang members in Houston by documenting their interactions with law

enforcement. (2 R.R. at 121-122, 154). Photographs of the Appellant, his car, and his

tattoos were entered by Sullivan into Gang Tracker, along with the Appellant’s name

and vital statistics. (2 R.R. at 122-125; 5 R.R. at 5-11 (State’s Exhibits 1-7)). Sullivan

noted in the entry he created for the Appellant that he was a former gang member as

opposed to an active one. (3 R.R. at 24).

       After Sullivan’s traffic stop of the Appellant in early October of 2011, Officer

Craig Ferzenni with the Houston Police Department’s Gang Division Crime Reduc-

tion Unit pulled the Appellant’s car over on April 8, 2012, at around 11 p.m.. (3 R.R.

at 41, 45-49, 52). The reason for the traffic stop was that the Appellant had twice

changed lanes without using a turn signal. (3 R.R. at 49-50, 54). As was the case with

the traffic stop carried out by Officer Sullivan, this occurred in the southeastern area

of Houston. (3 R.R. at 46).

                                            6
        Once the Appellant had pulled his car over, Ferzenni and his partner—Officer

Robert Revus—split up during their approach to the car, with Ferzenni going to the

driver’s side window and Revus walking to the passenger side. (3 R.R. at 44, 53-55,

97). The Appellant was driving the car, while his brother—Jarvis Washington3—was

sitting in the passenger seat. (3 R.R. at 60, 98). While Ferzenni was talking to the Ap-

pellant and asking for his driver’s license and insurance, Revus saw a pistol inside of

the car told Ferzenni to get the Appellant out of the vehicle. (3 R.R. at 59-60, 98-99).

The Appellant was not wearing a shirt during the traffic stop, which allowed Ferzenni

to see the same tattoos that Sullivan had documented several months earlier. (3 R.R.

at 60-62, 84, 102). As was the case with Sullivan, Ferzenni and Revus described the

Appellant as non-combative and cooperative during the traffic stop. (3 R.R. at 80,

113).

        The Appellant was frisked by Ferzenni and separated from Jarvis Washington,

who remained seated in the car. (3 R.R. at 100). A search of the Appellant’s vehicle

by Revus turned up a pistol found near the passenger’s seat. (3 R.R. at 63, 65). The

Appellant admitted ownership of the pistol and told Ferzenni that it was something

he carried in his capacity as a commissioned security guard. (3 R.R. at 65-66, 81).

Once the Appellant had been placed in the backseat of the police cruiser, Ferzenni



3
  The record variously refers to the Appellant’s brother as both Jyrus Washington and Jarvis Wash-
ington. Because the record indicates that he refers to himself as Jarvis during his testimony, this
brief will do so as well.


                                                 7
found that the Appellant had been documented as a former gang member in the Gang

Tracker program. (3 R.R. at 79, 86, 104).

       Sergeant Clint Ponder with the Houston Police Department—a ten year veter-

an of the department’s gang division—provided general background information at

the Appellant’s trial about the 52 Hoovers-Crips. (3 R.R. at 132-134). According to

Ponder, the Hoovers-Crips are a street gang involved in criminal activity. (3 R.R. at

136-137). The colors blue and orange are commonly associated with this particular

gang. (3 R.R. at 139-140). Ponder took several photographs of the Appellant’s tattoos

as they appeared during the trial. (3 R.R. at 140-141). In Ponder’s opinion, these tat-

toos were indicative of membership in a Crips affiliated gang. (3 R.R. at 142-148).

       Jarvis Washington—the Appellant’s twin brother—testified as a witness for the

defense and confirmed that he was a passenger in the Appellant’s car on the night

they were pulled over by Revus and Ferzenni. (3 R.R. at 173, 176-177). After the Ap-

pellant had gotten out of his car, Jarvis recalled hearing that the Appellant told

Ferzenni that there was a gun in the car and that he had a license to carry it. No at-

tempt was made to conceal the pistol from the officers. (3 R.R. at 177-179). From

Jarvis’s understanding, the pistol was something that the Appellant used for his work

as a security guard. (3 R.R. at 182). Jarvis was not arrested that night. (3 R.R. at 180).

       The Appellant elected to testify at the trial and offered up his own version of

events. Initially, the Appellant denied that he had switched lanes and that he had not

committed the traffic infraction for which he was pulled over. (3 R.R. at 196). When

                                             8
the Appellant handed Ferzenni his driver’s license and insurance, he also provided the

officer with his license to carry the pistol and informed him that there was a gun in

the car. (3 R.R. at 197). For the Appellant, the pistol was a tool that he used every day

at his job. (3 R.R. at 198).

       In explaining the presence of the tattoos on his body, the Appellant expressed a

desire to have them removed. The tattoos were originally placed on him eight years

prior to trial when the Appellant was in the ninth grade at age fifteen. The Appellant

decided to get the tattoos because he “was young and everybody was doing it.” (3

R.R. at 204-205). He denied having any association with gang members of having en-

gaged in any criminal activities in the five years prior to the trial, but did conceded

that he was formerly a member of the 52 Hoovers-Crips. (3 R.R. at 205-206; 4 R.R. at

7).

                               SUMMARY OF THE ARGUMENT

       The State’s first witness at the guilt-innocence phase of trial was Officer Gor-

don Sullivan, who was certified as an expert witness on the issue of gang membership.

But during the Daubert hearing to test Sullivan’s qualifications as an expert witness,

Sullivan was unable to articulate the full methodology he relies upon to identify gang

members, and explained that he relies on the Gang Tracker program to provide this

methodology to him. Because the defense was essentially prevented from fully and

fairly exploring Sullivan’s purported methodology, Sullivan was not properly qualified

to testify as an expert witness.

                                           9
      During the testimony of Sergeant Clint Ponder, State’s Exhibits 24, 25, and 26

were introduced into evidence over the objection of defense counsel. These three ex-

hibits purport to be imagery commonly associated with the 52 Hoovers-Crips gang.

Ponder demonstrated no personal knowledge of where this images came from, and

the State offered no explanation as to the origin of them. As such, these three exhib-

its were not properly authenticated and the trial court committed error in admitting

them into evidence.




                                         10
                                         ARGUMENT

              ISSUE ONE: Officer Sullivan’s inability to properly
              articulate the methodology that he relies on to identify
              members of street gangs rendered his expert testimony
              unreliable under Texas Rules of Evidence 702, and the trial
              court erred in permitting him to testify as an expert
              witness.
       The State sought to elicit expert testimony from Officer Gordon Sullivan on

the subject of criminal street gangs. Although courts have previously upheld the use

of expert testimony to explain the membership, terminology, and symbols of gangs,

King v. State, 29 S.W.3d 556, 560 (Tex. Crim. App. 2000), Sullivan did not demonstrate

that his testimony was sufficiently reliable to properly offer expert testimony on the

issue of gang membership. And to be clear, the Appellant concedes that since gang

affiliation is an element of the offense of unlawful carrying of a weapon, this type of

testimony would be relevant. See Tex. Penal Code § 46.02(a-1)(2)(c). But it is the relia-

bility of Sullivan’s that the Appellant is now challenging. See Vela v. State, 209 S.W.3d

128, 131 (Tex. Crim. App. 2006) (trial court must find that three conditions are met

for an expert to testify: 1) qualification; 2) reliability; and 3) relevance).

   A. Defense Counsel Preserved Error By Objecting To Officer Sullivan’s
      Testimony, Requesting a Daubert Hearing, And Renewing the Objec-
      tion At the Close Of the Hearing

       Early on in the direct examination by the State of Sullivan, defense counsel ob-

jected to the State’s line of questioning and stated to the trial court that “this witness




                                              11
has not been qualified as an expert.” (2 R.R. at 107-108). A Daubert4 hearing followed,

during which Sullivan’s qualifications as a gang expert were explored through cross-

examination. (2 R.R. at 108-114). At the close of the hearing, defense counsel re-

newed his objection, stating that “I’d ask that this witness not be able to testify as any

type of expert. I don’t believe he even qualifies as an expert under Daubert.” (2 R.R. at

114-115). Defense counsel’s objection was subsequently overruled and Sullivan was

permitted to testify as an expert on the issue of gang membership. However, the trial

court did permit defense counsel to have a running objection to Sullivan’s testimony.

(2 R.R. at 115).

          Because defense counsel made a timely objection to the trial court, stated the

grounds on which his objection was based, the trial court indicated awareness of the

nature of defense counsel’s objection, and expressly ruled on defense counsel’s objec-

tion, any potential error has been preserved for appellate review. See Tex. R. App.

Proc. 33.1(a).

      B. Under Texas Rules Of Evidence 702, An Expert Must Be Qualified To
         Testify On the Relevant Subject Matter
          Testimony by expert witnesses is governed by Texas Rules of Evidence 702.

This rule permits a witness qualified by knowledge, skill, experience, training or educa-

tion to testify on not only scientific subjects, but also on other specialized subjects

that would assist the trier of fact in understanding or determining a fact issue. Tex. R.


4
    See Daubert v. Merrell Dow Pharm., 509 U.S. 579, 590 (1993).


                                                     12
Evid. 702. The opinion offered by the expert must be more than “subjective belief or

unsupported speculation,” but it does not need to reach the level of “known to a cer-

tainty” to be admissible. Daubert, 509 U.S. at 590.

      There are two hurdles that Rule 702 requires an expert’s testimony to over-

come: the proponent of the testimony must establish that the expert’s specialized

knowledge will aid the trier of fact, and that the expert is qualified to testify on the

subject. Tex. R. Evid. 702. The burden in this case thus fell on the State to demon-

strate that Sullivan was qualified as an expert on the subject of gang membership. See

Penry v. State, 903 S.W.3d 715, 762 (Tex. Crim. App. 1995).

   C. Officer Sullivan Could Not Articulate the Methodology He Used To
      Identify Gang Members, And Explained That He Relied Almost Entirely
      On a Computer Program
      In the course of the Daubert hearing, Sullivan explained that his qualifications as

an expert in gang membership consisted of the following: 1) five years of experience

with the Houston Police Department; 2) an eight hour training class that he was re-

quired to take every other year; 3) an unspecified amount of training he received in

the police academy; and 4) interactions with three members of the 52 Hoovers-Crips

over the past five years. (2 R.R. at 108-111). Sullivan also touched on the criteria that

he relies on to identify gang members, explaining that there are eight factors that he

looks for to identify someone as a member of a gang and that only two of these fac-

tors must be present to qualify someone as a gang member (2 R.R. at 112). Among

these factors were “colors, tattoos, self-admission, being around other documented


                                           13
gang members, having a confidential and reliable witness.” Id. But Sullivan was unable

to articulate the remaining factors, stating that “I got to have the tracker in front of

me to see the rest of them.” Id.

      Because Sullivan was contending that there was a particular methodology that

he relied on to identify gang members, it was incumbent that the methodology be val-

idated as a legitimate one. See Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App.

1998), overruled on other grounds, State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999).

Put simply, because Sullivan could not explain all of the factors he relies on to identify

a gang member, it was impossible to properly vet the methodology that underlies the

gang member identification process that he used to classify the Appellant as a gang

member. Since the “expertise must be measured against the particular opinion the

expert is offering,” Roise v. State, 7 S.W.3d 225, 234 (Tex. App.—Austin 1999, pet.

ref’d), the expert testimony of Sullivan must have been based on a reliable foundation.

See also Tex. R. Evid. 705(c) (“An expert's opinion is inadmissible if the underlying

facts or data do not provide a sufficient basis for the opinion.”).

      Because Sullivan was unable to properly articulate the underlying data or facts

that formed the basis of his testimony as an expert witness, the defense was in effect

prevented from conducting a full voir dire of the basis of his testimony. Under Texas

Rules of Evidence 705(b), the Appellant had a mandatory right to examine Sullivan

about the underlying facts or data that inform his opinion. Sullivan’s inability to pro-

vide this underlying methodology denied the Appellant the opportunity to explore the

                                            14
basis of Sullivan’s opinion and rendered his expert testimony unreliable. See Harris v.

State, 133 S.W.3d 760, 775 (Tex. App.—Texarkana 2004, pet. ref’d) (holding that the

trial court abused its discretion by not allowing the defense to voir dire an expert wit-

ness regarding the underlying data or facts that formed the basis of the expert’s testi-

mony). Thus, the trial court erred in allowing Sullivan to testify as an expert witness

on the subject of gang membership when Sullivan could not provide the underlying

facts, data, and methodology that crafted his opinion, rendering it unreliable.

   D. The Appellant Suffered Harm As Sullivan’s Unreliable Conclusions In-
      vaded the Jury’s Province As the Trier Of Fact
       Because any error in allowing Sullivan to testify as an expert witness is non-

constitutional in nature, harm to the Appellant is assessed under Texas Rules of Ap-

pellate Procedure 44.2(b).

       Membership in a gang is a critical element of the crime the Appellant was

charged with. Tex. Penal Code § 46.02(a-1)(2)(c). Sullivan was the first member of

law enforcement to take official action to label the Appellant as a member of a gang

during the traffic stop which took place on October 4, 2011, approximately six

months before the incident for which the Appellant was arrested. (2 R.R. at 117; 3

R.R. at 43). And it was Sullivan who originally made the decision to enter the Appel-

lant into the Houston Police Department’s Gang Tracker program, which the arrest-

ing officers would later rely on. (3 R.R. at 23, 79).




                                             15
      By allowing Sullivan to testify as an expert in gang membership, the trial court

permitted Sullivan to opine on the significance of things such as the Appellant’s tat-

toos and the color of the Appellant’s car, which were the primary pieces of evidence

the State relied on to prove up the element of gang membership in the criminal charge

against the Appellant. (2 R.R. at 121; 3 R.R. at 9, 11). This testimony, based on Sulli-

van’s unreliable foundation of underlying data and facts for his expert opinion,

crossed the line between assisting the jury and replacing the jury as the trier of fact

and caused the Appellant harm.

             ISSUE TWO: The trial court erred in admitting State’s Ex-
             hibits 24, 25, and 26—photos printed from the internet of
             various gang symbols—as these exhibits were not properly
             authenticated.

      During the testimony of Sergeant Clint Ponder—an officer who was not direct-

ly involved in the Appellant’s case and offered only expert testimony on gangs—the

State sought to introduce State’s Exhibits 24, 25, and 26. (3 R.R. at 148-150; 5 R.R. at

27-29). These images purported to show a variety of gang symbols associated with

the 52 Hoovers-Crips, primarily revolving around the Houston Astros logo. Id.

   A. Defense Counsel Preserved Error By Objecting When the State Sought
      To Enter the Exhibits Into Evidence
      After the State had presented State’s Exhibits 24, 25, and 26 to Ponder, the

prosecutor moved to have the trial court enter the exhibits into evidence. At this

point, defense counsel objected, stating that “I have no idea where these exhibits were

derived from, nor do I have any idea of how they’re relevant to the current case,” and


                                          16
that “This looks like somebody just printed it out off a website.” (3 R.R. at 149-150).

After the trial court requested to inspect the exhibits, the trial court overruled defense

counsel’s objections and entered the three photographs into evidence, which the State

subsequently published to the jury. Id.

       Although defense counsel did not specifically use the term “authentication,”

the nature of his objection was apparent from context. See Tex. R. App. Proc.

33.1(a)(1)(A) (error is preserved if an objection “stated the grounds for the ruling . . .

unless the specific grounds were apparent from the context”). Neither the trial court

nor the State expressed any confusion about the basis for defense counsel’s objection,

and the trial court gave a ruling adverse to the defense counsel’s objection. Therefore,

error was preserved for appellate review. See, e.g., Everitt v. State, 407 S.W.3d 259, 263

(Tex. Crim. App. 2013) (reiterating that there are no hyper-technical requirements for

error preservation); Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009) (an ob-

jection preserves error if it is “sufficiently clear to provide the trial judge and opposing

counsel an opportunity to address and, if necessary, correct the purported error”);

Lankston v. State, 827 S.W.3d 907, 909 (Tex. Crim. App. 1992) (“Straightforward

communication in plain English will always suffice [to preserve error].”).




                                            17
   B. Photographs Must Be Shown To Properly Represent the Object In Ques-
      tion By Any Witness Who Knows the Underlying Facts Portrayed In the
      Photos
      Any error in the trial court’s decision to admit evidence over an authentication

objection is reviewed under an abuse of discretion standard. Tienda v. State, 358

S.W.3d 633, 638 (Tex. Crim. App. 2012).

      Issues of authentication occur when the relevancy of evidence is conditioned

on its identity. Campbell v. State, 382 S.W.3d 545, 549-50 (Tex. App.—Austin 2012, no

pet.). As a general rule, authentication can be achieved by direct testimony from a

witness with personal knowledge, or by circumstantial evidence. Tex. R. Evid. 901.

In regards to still photographs, the predicate for introduction requires proof of its ac-

curacy as a correct representation of the subject at a given time, and its relevance to a

material issue. Huffman v. State, 746 S.W.2d 212, 222 (Tex. Crim. App. 1988). Alt-

hough it is ideal for the person who took the photograph to authenticate them from

the witness stand, this is not an absolute necessity and a person other than the pho-

tographer can authenticate the pictures. Id.

   C. There Is Insufficient Evidence In the Record That State’s Exhibits 24,
      25, and 26 Are a Correct Representation Of the Facts Portrayed
      There is nothing in the record to indicate what the source of State’s Exhibits

24, 25, and 26 is. In arguing to the trial court that the photographs should be admit-

ted, the State seemed to tacitly admit that these exhibits had been pulled from an uni-




                                           18
dentified online source, but that this was permissible since Ponder “testified that he

does sometimes use the Internet.” (3 R.R. at 149).

      The circumstances under which a photograph was obtained is a significant fac-

tor in determining whether it has been properly authenticated through a witness who

did not take the photograph. See Hernandez v. State, No. 03-04-00356-CR, 2006 WL

191918, at *6 (Tex. App.—Austin Jan. 26, 2006, pet. ref’d) (not designated for publi-

cation) (holding that the seizure of a photograph by a police officer who did not take

the photograph demonstrated sufficient circumstances to properly authenticate it).

The State offered no explanation as to the origins of State’s Exhibits 24, 25, and 26.

Ponder demonstrated no personal knowledge of when and where the photographs

had been made, and could therefore not offer credible testimony as to whether the

exhibits were fair and accurate depictions of what they purported to be. See Tex. R.

Evid. 901(a).

      In particular, State’s Exhibit 26 depicts what appears to be a large quantity of

marijuana packaged for individual sale, a wad of twenty dollar bills, and two Houston

Astros baseball caps arranged in a way that might be most appropriate for the catalog-

ing of seized evidence by law enforcement. (3 R.R. at 151; 5 R.R. at 29). According to

Ponder, this image demonstrates “just kind of an attractiveness to the gang, ‘Hey, you

can make money and sell drugs,’ and you know, the coolness stature, I guess.” (3 R.R.

at 151). But because Ponder demonstrated no knowledge of the origins of this image,

there is no way to know whether this was an exhibit created by the State, members of

                                          19
law enforcement, or by a gang member. Further, there was no allegation made at trial

that the Appellant was involved in drug sales or that he was carrying an inordinately

large amount of marijuana or cash, as depicted in State’s Exhibit 26.

   D. The Appellant Suffered Harm As the Introduction Of the Unauthenticat-
      ed Images Allowed the Jury To Draw Unsubstantiated Connections Be-
      tween the Exhibits And the Appellant’s Alleged Gang Membership
       As was the case in the previous point of error, harmless error analysis under

Texas Rules of Appellate Procedure 44.2(b) applies. State’s Exhibits 24, 25, and 26

purported to be objective evidence of symbols employed by the 52 Hoovers-Crips

gang, and the State used these exhibits through Ponder to link the imagery to the Ap-

pellant’s tattoos and the criminal activity of the gang, to which the Appellant was un-

fairly associated. There was no other evidence offered of the Appellant’s involvement

in criminal activity outside of the allegation that the Appellant must be dealing drugs

since that’s what this gang does, according to Ponder and as represented by State’s

Exhibit 26. (3 R.R. at 151; 5 R.R. at 29).

       Because the State was required to prove both that the Appellant was a member

of a criminal street gang and that the gang he was a member of regularly engages in

criminal activities, these exhibits were central to a critical element of the State’s case.

See Tex. Penal Code §§ 46.02(a-1)(2)(c), 71.01(d). The introduction of these unauthen-

ticated images thus harmed the Appellant, as they provided evidence of the alleged

criminal activities of the 52 Hoovers-Crips.




                                             20
                                      PRAYER

      Jeremy Washington asks this Honorable Court to reverse the judgment of guilt

for the offense of unlawful carrying of a weapon and remand the case to the trial

court for a new proceeding on guilt-innocence.


                                                  Respectfully submitted,
                                                  ALEXANDER BUNIN
                                                  Chief Public Defender
                                                  Harris County, Texas


                                                  /s Mark Kratovil
                                                  MARK KRATOVIL
                                                  Assistant Public Defender
                                                  Texas Bar Number 24076098
                                                  1201 Franklin Street, 13th Floor
                                                  Houston, Texas 77002
                                                  Telephone: (713) 274-6728
                                                  Facsimile: (713) 437-4339
                                                  mark.kratovil@pdo.hctx.net




                                         21
                            CERTIFICATE OF SERVICE

      I certify that I provided a copy of the foregoing brief to the Harris County

District Attorney’s appellate division by electronic delivery through eFile Texas on

June 13, 2015.

                                                   /s Mark Kratovil
                                                   MARK KRATOVIL




                                        22
                           CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9.4(i)(3), undersigned counsel certifies that this brief complies

with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).

1.    Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief

contains 2,614 words printed in a proportionally spaced typeface.

2.    This brief is printed in a proportionally spaced typeface using Garamond 14

point font in text and Garamond 12 point font in footnotes.

3.    Upon request, undersigned counsel will provide an electronic version of this

brief and/or a copy of the word printout to the Court.

4.    Undersigned counsel understands that a material misrepresentation in complet-

ing this certificate, or circumvention of the type-volume limits in Tex. R. App. Proc.

9.4(j), may result in the Court's striking this brief and imposing sanctions against the

person who signed it.

                                                /s Mark Kratovil
                                                MARK KRATOVIL




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