                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-12-00095-CR

MARCO AGUNDIZ CABRERA,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee



                          From the 85th District Court
                              Brazos County, Texas
                        Trial Court No. 10-03842-CRF-85


                         MEMORANDUM OPINION

      Appellant Marco Agundiz Cabrera was found guilty by a jury of engaging in

organized criminal activity with respect to committing or attempting to commit

aggravated assault. The jury assessed a prison sentence of sixty years and a $10,000

fine. Raising one issue, Agundiz Cabrera appeals.

      The offense of engaging in organized criminal activity is committed if a person

commits aggravated assault with the intent to establish, maintain, or participate in a

criminal street gang. TEX. PENAL CODE ANN. § 71.02(a)(1) (West Supp. 2013). A criminal
street gang “means three or more persons having a common identifying sign or symbol

or an identifiable leadership who continuously or regularly associate in the commission

of criminal activities.” Id. § 71.01(d) (West 2011).

         To prove that Agundiz Cabrera was a member of a criminal street gang at the

time of the alleged aggravated assault, the State presented the testimony of Bryan Police

Officer Andrea Schooler, the gang intelligence officer for the Criminal Intelligence Unit

and a ten-year veteran of the Bryan Police Department. Schooler testified that, before

becoming the gang intelligence officer, she was a Bryan patrol officer for six years. She

was predominately assigned to a zone considered to have the highest volume of gang

activity and responded to numerous fights, drive-by shootings, and assaults that

involved gang members. She said that the Bryan Police Department maintains a gang

database and that when patrol officers learn that a crime is gang-related, they get that

information to the officers responsible for entering the information in the gang

database.

        Schooler then was a member of a county-wide task force (the Special

Investigations Unit) for gangs, narcotics, and organized crime for two and a half years.

In that task force, she primarily focused on gang intelligence, had a gang database, and

received a “large number of hours of training in gangs and narcotics investigations.”

        Next, in 2010, Schooler was assigned to the Criminal Intelligence Unit, where her

primary focus is on gangs. As the criminal intelligence officer on gangs, she maintains

the gang database, trains officers on gang recognition (signs and symbols) and gang

members, and supports other areas of law enforcement with criminal investigations

Cabrera v. State                                                                   Page 2
involving gang members. And by talking with gang members, Schooler has learned the

internal structure and workings of gangs. Schooler testified at length about the many

gang training courses and conferences that she has attended to date, and they totaled

196 hours. She is a member of the Texas Gang Investigators Association.

        Schooler said that, through her training, and experience, she has acquired

specialized knowledge relating to gangs and specifically the Latin Kings, the Sureños,

and the Vatos Locos. She has previously testified in Brazos County as an expert on

those gangs. Regarding the Latin Kings, Schooler testified that, on a local level from

2008 to the present, the Latin Kings had three or more persons grouped under that

name with identifiable signs and symbols; their primary colors are black and gold and a

five-point crown or star is used. The numbers 12 and 11 are very important because L

and K are the twelfth and eleventh letters in the alphabet, and the number 5 is also

important. Their hand signs include “amor de rey” (love of king) and the pitchfork sign

with the forks down, and because of the number 5’s importance, they also use the “five”

hand sign. Schooler said that street gang members carry “flags,” which is usually a

bandanna, and in the case of the Latin Kings, they will have a black or gold bandanna

or a black-and-gold bandanna. Necklaces are unique to the Latin Kings, and theirs has

five black and then five gold beads, alternating all the way around.

        Schooler also testified that, based on her training and experience, the Latin Kings

are a known Brazos County criminal street gang that regularly associates in criminal

activities such as graffiti, property crimes, burglary, narcotics, assaults and aggravated

assaults, retaliation, and murder.     The Latin Kings are the largest gang in Brazos

Cabrera v. State                                                                     Page 3
County, and their rival gangs are the Sureños and the Vatos Locos. Schooler testified

that, for determining whether a person is a member of gang and to put the person in the

gang database, she goes by the criteria in Chapter 61 of the Code of Criminal Procedure.

See TEX. CODE CRIM. PROC. ANN. art. 61.02 (West Supp. 2013).

        Before Schooler testified, Angelica Guzman testified and authenticated two

photographs (State’s Exhibits 11 and 12) as being taken on October 8, 2008. Guzman

said that she and Agundiz Cabrera were in those two photographs. Also testifying was

Terry Young, an investigator with the Brazos County Sherriff’s Office; he, like Schooler,

had been a member of the Special Investigations Unit where he focused primarily on

street gangs. Young said that on October 8, 2008, he and two other investigators were

conducting surveillance and taking photographs of persons at the funeral for Jose

Reyna, whom Schooler later said was a known member of the Latin Kings and had been

murdered.          Young said that Agundiz Cabrera was at that funeral, and Young

authenticated four photographs (State’s Exhibits 7, 8, 9, and 10) that were taken at the

funeral. Agundiz Cabrera and others were in all of the photographs.

        The trial court prohibited Schooler from testifying that Agundiz Cabrera was a

member of the Latin Kings because she did not have personal knowledge that he was a

member at the time of the underlying offense, but over Agundiz Cabrera’s

Confrontation objections, Schooler was allowed to identify other persons in the several

photographs as members of the Latin Kings because they were in the gang database.

For example, for State’s Exhibit 11, Schooler testified that, excluding Agundiz Cabrera,

all of the persons were members of the Latin Kings.

Cabrera v. State                                                                   Page 4
          In his sole issue, Agundiz Cabrera, citing Crawford v. Washington, 541 U.S. 36, 124

S.Ct. 1354, 158 L.Ed.2d 177 (2004), asserts a Confrontation Clause violation because the

trial court allowed Schooler to testify over objection that other persons pictured with

Agundiz Cabrera and dressed similarly to him were gang members. Agundiz Cabrera

argues that the gang database is the result of hearsay information from many different

law enforcement officers and that Schooler lacked personal knowledge to testify that

those persons were gang members; instead, she relied on hearsay from other officers.

          We review the trial court’s ruling admitting the evidence against a constitutional

objection under a bifurcated standard, giving deference to the trial court’s findings

regarding any pertinent historical facts but reviewing de novo the trial court’s

application of the law to those facts. Grey v. State, 299 S.W.3d 902, 907 (Tex. App.—

Austin 2009, pet. ref’d) (citing Wall v. State, 184 S.W.3d 730, 742-43 (Tex. Crim. App.

2006)).

                 The Confrontation Clause of the Sixth Amendment to the United
          States Constitution provides that, “[i]n all criminal prosecutions, the
          accused shall enjoy the right . . . to be confronted with the witnesses
          against him.” U.S. CONST. amend VI. This procedural guarantee applies
          to both federal and state prosecutions. Pointer v. Texas, 380 U.S. 400, 403,
          85 S.Ct. 1065, 1067-68, 13 L.Ed.2d 923 (1965); De La Paz v. State, 273 S.W.3d
          671, 680 (Tex. Crim. App. 2008). Consistent with the Confrontation Clause
          guarantee, a testimonial hearsay statement may be admitted in evidence
          against a defendant “only where the declarant is unavailable, and only
          where the defendant has had a prior opportunity to cross-examine.”
          Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1373-74, 158 L.Ed.2d
          177 (2004); see De La Paz, 273 S.W.3d at 680. “[T]he Crawford rule reflects
          the Framers’ preferred mechanism (cross-examination) for ensuring that
          inaccurate out-of-court testimonial statements are not used to convict an
          accused.” Whorton v. Bockting, 549 U.S. 406, 418, 127 S.Ct. 1173, 1182, 167
          L.Ed.2d 1 (2007); De La Paz, 273 S.W.3d at 680. “Generally, speaking, a
          hearsay statement is ‘testimonial’ when the surrounding circumstances

Cabrera v. State                                                                          Page 5
        objectively indicate that the primary purpose of the interview or
        interrogation is to establish or prove past events potentially relevant to
        later criminal prosecution.” De La Paz, 273 S.W.3d at 680.

Pollard v. State, 392 S.W.3d 785, 792 (Tex. App.—Waco 2012, pet. ref’d).

        In response, the State argues that Crawford does not prevent expert witnesses

from offering their independent judgments merely because their judgments were in

some part formed by their exposure to otherwise inadmissible evidence. Relying on

United States v. Palacios, 677 F.3d 234 (4th Cir.), cert. denied, 133 S.Ct. 124 (2012), the State

contends that Schooler gave her independent judgment as a gang expert that applied

her training and experience to the information before her that produced “an original

product that can be tested through cross-examination.” Id. at 243. We agree.

        Rule of Evidence 703 provides:

              The facts or data in the particular case upon which an expert bases
        an opinion or inference may be those perceived by, reviewed by, or made
        known to the expert at or before the hearing. If of a type reasonably relied
        upon by experts in the particular field in forming opinions or inferences
        upon the subject, the facts or data need not be admissible in evidence.

TEX. R. EVID. 703. Under this rule, an expert may base an opinion solely on hearsay.

Martinez v. State, 22 S.W.3d 504, 508 (Tex. Crim. App. 2000); Aguilar v. State, 887 S.W.2d

27, 29 & n.8 (Tex. Crim. App. 1994).

        In Palacios, the Fourth Circuit addressed the defendant’s Confrontation objection

to the gang expert’s testimony that relied in part on interviews with unnamed gang

members and victims of gang violence.

               Federal Rule of Evidence 705 allows an expert witness to “base an
        opinion on facts or data in the case that the expert has been made aware of
        or personally observed.” This includes inadmissible evidence—including

Cabrera v. State                                                                           Page 6
        hearsay—“[i]f experts in the particular field would reasonably rely on
        those kinds of facts or data in forming an opinion on the subject.” FED. R.
        EVID. 703; see also United States v. Leeson, 453 F.3d 631, 637 (4th Cir. 2006)
        (holding that a district court did not abuse its discretion by admitting
        expert testimony based on hearsay when it had been “sufficiently
        established” that such hearsay statements were the type of information
        “reasonably relied upon by experts in [the] field”).

               Under Crawford, testimonial hearsay raises special concerns,
        however, because it implicates a defendant’s constitutional rights. See
        United States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009). Crawford
        established that the Confrontation Clause bars the “admission of
        testimonial statements of a witness who did not appear at trial unless he
        was unavailable to testify, and the defendant had had a prior opportunity
        for cross-examination.” 541 U.S. at 53-54, 124 S.Ct. 1354. The Supreme
        Court has not provided a definitive definition of “testimonial,” but a
        statement “procured with a primary purpose of creating an out-of-court
        substitute for trial testimony” is the quintessential example of testimonial
        hearsay. Michigan v. Bryant, ___ U.S. ___, 131 S.Ct. 1143, 1155, 179 L.Ed.2d
        93 (2011). Although “Crawford forbids the introduction of testimonial
        hearsay as evidence in itself,” we have recognized that “it in no way
        prevents expert witnesses from offering their independent judgments
        merely because those judgments were in some part informed by their
        exposure to otherwise inadmissible evidence.” Johnson, 587 F.3d at 635.
        The touchstone for determining whether an expert is “giving an
        independent judgment or merely acting as a transmitter for testimonial
        hearsay” is whether an expert “is applying his training and expertise to
        the sources before him,” thereby producing “an original product that can
        be tested through cross-examination.” Id.

                Applying this test, we rejected a claim identical to the one before us
        in United States v. Ayala, 601 F.3d 256 (4th Cir. 2010). Ayala involved the
        same MS–13 conspiracy we confront here, and similar to Palacios, the
        appellants in that case claimed that the district court’s admission of the
        expert testimony of Sergeant Norris and two other law enforcement
        officials violated their Confrontation Clause rights because the testimony
        “relied in part on interviews with unnamed declarants.” Id. at 274. We
        held that no Crawford violation had occurred, observing:

            As an initial matter, it is unclear whether the interviews these
            experts relied on were even testimonial, given that the record is
            rather bare about the circumstances in which they were conducted.
            But even if we assume that each expert did rely on testimonial

Cabrera v. State                                                                         Page 7
            statements, that fact alone does not offend the Confrontation Clause
            because the experts did not act as mere transmitters and in fact did
            not repeat statements of particular declarants to the jury. Instead,
            they offered their independent judgments, most of which related to
            the gang’s general nature as a violent organization and were not
            about the defendants in particular. These judgments resulted from
            many years of observing the gang, studying its methods, and
            speaking with its members. Given that each expert was subject to
            cross-examination about his judgment, we find no error in the
            admission of their testimony.

            Id. at 275.

               Here, Sergeant Norris explained the bases for his expertise
        regarding MS–13. These included extensive gang culture training,
        interactions with other law enforcement officers who specialize in gangs,
        personal observation through surveillance and executing search warrants,
        and “[h]undreds and hundreds ..., if not thousands” of interviews with
        MS–13 members and victims of MS–13 gang violence. J.A. 637. As in
        Ayala, the record before us is unclear as to whether these interviews were
        testimonial. See 601 F.3d at 275. Palacios, in fact, makes no assertion that
        they were. Assuming at least some of the interviews Norris conducted
        produced testimonial hearsay, however, Norris did not specifically
        reference any of these interviews during his expert testimony, nor did he
        make any mention of Palacios in particular. Rather, he used these
        interviews, along with the other sources of his extensive knowledge about
        MS–13, to form an independent opinion about the gang’s history,
        operation, structure, practices, and symbols. Norris was available for
        cross-examination regarding this opinion. As such, we reiterate our
        position in Ayala that the admission of Norris’s testimony was not a
        Crawford violation, even if his expert opinion was based, in part, on
        testimonial hearsay.

Palacios, 677 F.3d at 242-44.

        Likewise, we conclude that Schooler’s testimony that the other persons in the

photographs were gang members did not violate the Confrontation Clause because her

testimony demonstrated her training and experience with criminal street gangs in

general and specifically with the Latin Kings and produced an original product that


Cabrera v. State                                                                       Page 8
could be, and was, tested by cross-examination.

        We overrule Agundiz Cabrera’s issue and affirm the trial court’s judgment.




                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed May 8, 2014
Do Not Publish
[CRPM]




Cabrera v. State                                                                     Page 9
