Affirmed as Modified; Opinion Filed November 4, 2015.




                                             In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-01245-CR

                                JOSE ALFARO, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 203rd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1200983-P

                             MEMORANDUM OPINION
               Before Chief Justice Wright, Justice Fillmore, and Justice Stoddart
                                  Opinion by Justice Stoddart
       A jury convicted Jose Alfaro of murder and sentenced him to 55 years’ confinement. In a

single issue, Alfaro asserts the trial court abused its discretion by admitting hearsay evidence at

the punishment phase of trial. In a single cross-issue, the State argues the judgment should be

modified to reflect the $10,000 fine assessed by the jury. We modify the judgment and affirm as

modified.

                                     FACTUAL BACKGROUND

       During the punishment phase of Alfaro’s trial, the State offered testimony from Dallas

Police Officer Edward Tena. When he worked in the Gang Unit for the police department, Tena

would gather intelligence about gangs and their members. He became familiar with a gang

called North Side Locos. Alfaro was a member of the North Side Locos. When asked about

Alfaro’s reputation in his neighborhood, Tena testified that “most people are very fearful of him.
He was very good at intimidating people.” Tena worked on “a number of different offenses

where [Alfaro’s] name would constantly come up and people would be basically scared to say

anything.”

       At trial and on appeal, Alfaro argues that Tena’s testimony is hearsay testimony that

extends beyond general reputation evidence and contains unproven allegations of specific

criminal acts. Alfaro asserts the trial court erred by overruling his objections to the testimony.

                                         LAW & ANALYSIS

A.     Admission of Evidence

       We review the trial court’s decision to admit or exclude evidence under an abuse of

discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). The trial

court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any

guiding rules or principles. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993). The

trial court does not abuse its discretion unless its determination lies outside the zone of

reasonable disagreement. Martinez, 327 S.W.3d at 736.

       During the sentencing phase of trial, the trial court has broad discretion to admit evidence

the court deems relevant, including evidence of the defendant’s reputation or character. TEX.

CODE CRIM. PROC. ANN. art. 37.07 §3(a) (West Supp. 2014); Ho v. State, 171 S.W.3d 295, 305

(Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). Evidence of a defendant’s gang membership

is relevant because it relates to character. Beasley v. State, 902 S.W.2d 452, 456 (Tex. Crim.

App. 1995); Ho, 171 S.W.3d at 305; Hickman v. State, No. 05-10-01250-CR, 2013 WL 3947140,

at *2 (Tex. App.—Dallas July 29, 2013, no pet.) (mem. op., not designated for publication).

       Although Alfaro argues Tena’s statements were improperly admitted because they were

“out-of-court statements of others that reflect unproven allegations of specific criminal acts,” we

disagree. Tena did not testify to any unproven allegations of specific criminal acts. Rather, Tena

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testified about Alfaro’s reputation in his community––that people were intimidated by and

fearful of him. Reputation testimony cannot be based on a witness’ personal knowledge or

opinion of the person or the violent acts the person committed. It must be based on what the

witness has heard from others. Beecham v. State, 580 S.W.2d 588, 590 (Tex. Crim. App. [Panel

Op.] 1979). Accordingly, we conclude the trial court did not abuse its discretion by overruling

Alfaro’s objections to testimony that fell within the permissible bounds of article 37.07, section

3(a). We overrule Alfaro’s sole issue.

B.     No Harm

       Even if we were to conclude the trial court abused its discretion by overruling Alfaro’s

objections to Tena’s testimony, we would conclude Alfaro was not harmed. The erroneous

admission or exclusion of evidence is nonconstitutional error. Walters v. State, 247 S.W.3d 204,

221 (Tex. Crim. App. 2007). Under rule 44.2(b), we disregard nonconstitutional error that does

not affect the substantive rights of the appellant. See TEX. R. APP. P. 44.2(b); Potier v. State, 68

S.W.3d 657, 666 (Tex. Crim. App. 2002). Substantial rights are not affected if, based on the

record as a whole, we have a fair assurance that the error did not influence the jury or had but a

slight effect. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).

       After reviewing the record, we conclude the complained-of testimony was not substantial

or injurious. The testimony elicited from witnesses showed Alfaro was active in his gang and

had a history of criminal activity. Tena also testified about Alfaro’s tattoos that identified him as

a member of the North Side Locos. She stated the gang was involved in robberies, kidnappings,

murders, assaults, and aggravated assaults.

       Alfaro’s juvenile probation officer testified about his prior criminal activity. When

Alfaro was thirteen years old, he was placed on probation for, among other things, committing

aggravated assault with a deadly weapon. Three months later, the court concluded he violated

                                                –3–
his probation by possessing a handgun and he was placed into custody of the Dallas County

Youth Village. Alfaro subsequently violated his probation by committing an assault causing

bodily injury, failing to produce identification after damaging property, and violating curfew.

Eventually, Alfaro was removed from a residential drug treatment center for failure to comply

with the rules of the facility and for aggressive behavior. His juvenile probation officer testified

his problems were partially a result of living a “gang lifestyle” and being part of a “gang

culture.”

       The State also presented testimony from the daughter of Alfaro’s victim, who told the

jury about how difficult her father’s death was for her family.

       After reviewing the entire record, we would conclude Alfaro was not harmed by Tena’s

testimony.

C.     Modification of Judgment

       In a single cross-issue, the State asserts the record reflects the jury assessed a $10,000

fine as part of Alfaro’s punishment and the judgment should be modified to include the fine. The

verdict form shows the jury assessed punishment for 55 years’ imprisonment and a fine of

$10,000. The trial court read the verdict, including the $10,000 fine, aloud in court with Alfaro

present.

       This Court has the power to correct a clerical error on a judgment to reflect what occurred

in the trial court as shown by the record. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865

S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—

Dallas 1991, pet. ref’d) (en banc).

       Because we have the necessary information to correct the judgment, we modify the

judgment to reflect the $10,000 fine that was orally pronounced.




                                                –4–
                                         CONCLUSION

       We modify the trial court’s judgment to reflect the $10,000 fine that was orally

pronounced. As modified, we affirm the trial court’s judgment.




                                                   /Craig Stoddart/
                                                   CRAIG STODDART
                                                   JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
141245F.U05




                                             –5–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

JOSE ALFARO, Appellant                             On Appeal from the 203rd Judicial District
                                                   Court, Dallas County, Texas
No. 05-14-01245-CR        V.                       Trial Court Cause No. F-1200983-P.
                                                   Opinion delivered by Justice Stoddart.
THE STATE OF TEXAS, Appellee                       Chief Justice Wright and Justice Fillmore
                                                   participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
to reflect that appellant Jose Alfaro was assessed a $10,000 fine. As MODIFIED, the judgment
is AFFIRMED.


Judgment entered this 4th day of November, 2015.




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