                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-287-CR
                               NO. 2-07-288-CR
                               NO. 2-07-289-CR


JAMES MICHAEL DEAN                                                APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

                                    ------------

           FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

      Appellant James Michael Dean appeals four forty-five-year sentences

imposed by a jury following his guilty pleas and convictions for four counts of

aggravated robbery. In his sole point, appellant contends that the trial court

erred by admitting unduly prejudicial punishment evidence against him. See

Tex. R. Evid. 403. We affirm.


      1
          … See Tex. R. App. P. 47.4.
                               Background Facts

      Near midnight on October 25, 2006, appellant and another individual

went to Moe’s Short Stop, a Hurst convenience store. When appellant arrived,

store employee Rajesh Bajracharya was outside loading a truck.          Appellant

charged at Rajesh with a knife, knocked him down, and held the knife about

four inches from Rajesh’s face as appellant’s partner entered the store and took

some money. After appellant’s partner left the store, he and appellant searched

Rajesh’s pockets and appellant took Rajesh’s wrist watch. Four days later,

appellant and his partner went to another convenience store in Bedford, Texas,

where they robbed Chhitis Bhattachani.2

      On the evening of November 2, 2006, appellant returned to Moe’s Short

Stop, wearing black clothing, gloves, and sunglasses. He walked behind the

counter and pointed a knife at Nikesh Shrestha, who was helping a friend run

the store. While doing so, appellant commanded Nikesh to “get down, bitch,

or else I am going to stab you.” While appellant continued to point the knife at

Nikesh, his partner took money from the store’s register. During the robbery,

appellant also stole Nikesh’s backpack, his cell phone, and some of his cash.




      2
       … Because Chhitis did not testify, specific details regarding this incident
are absent from the record.

                                        2
      Three days later, appellant went to the Quick Track convenience store in

Bedford, again wearing black clothing, gloves, and sunglasses. While holding

a knife, appellant quickly walked around the counter and ordered store clerk

Santosh Gyawali to kneel. After Santosh complied with appellant’s command,

appellant took Santosh’s money, his wallet, and his cell phone, as well as some

of the store’s cigarettes before leaving.      The Hurst and Bedford police

departments conducted a joint investigation and determined that appellant

participated in each of the incidents. They charged appellant with four counts

of aggravated robbery.3 At trial, after the parties conducted voir dire and the

State read appellant’s indictments, appellant pled guilty to each of the four

charges. In exchange for appellant’s guilty pleas, the State waived the habitual

offender enhancement paragraphs contained in the indictments, rendering




      3
      … The four robbery charges were indicted in three separate cases and
each indictment contained a habitual offender enhancement paragraph.
However, the cases were tried concurrently.

                                       3
appellant’s range of punishment at five to 99 years or life.4 See Tex. Penal

Code Ann. §§ 12.32(a), 29.03(b) (Vernon 2003).

      Before testimony began on the issue of punishment, appellant’s counsel

alerted the trial court that the State planned to introduce photographs of

appellant’s tattoos, which connected appellant to racist organizations and

beliefs. Appellant’s counsel argued that the photographs were inadmissible

because they were “not relevant to the proceeding” and they were “overly

inflammatory and prejudicial and not necessary to the conduct of the case or

to anything the State [was] required to prove.”       The State responded by

contending that the photographs demonstrated appellant’s negative character

traits and his affiliation with a prison organization that was associated with

criminal activities. The trial court deferred its ruling on the photographs until

they were actually offered in evidence.




      4
        … Because the waiver of the enhancement paragraphs affected only the
minimum amount of punishment appellant could have received, rather than
capping the maximum amount, no “plea bargain” occurred for the purposes of
Rule 25.2(a)(2) of the rules of appellate procedure. Tex. R. App. P. 25.2(a)(2);
see Taplin v. State, 78 S.W.3d 459, 461 (Tex. App.—Austin 2001, no pet.);
Perez v. State, 129 S.W.3d 282, 286 (Tex. App.—Corpus Christi 2004, no
pet.) (noting that “[o]nly a plea bargain that incorporates an agreed
recommendation as to punishment and is accepted by the court” triggers
jurisdictional restrictions under Rule 25.2(a)(2)).

                                       4
      During appellant’s trial on punishment, Hurst Police Detective Chad

Woodside (who had previously served on a gang task force) testified about

white supremacist gang activity. Specifically, Detective Woodside testified that

he was familiar with the Ku Klux Klan (KKK), that the KKK was “usually

involved in crime,” including violent crime, and that the KKK’s typical targets

were minorities or individuals from other countries. Detective Woodside also

testified about an organization called the White Knights, which he explained

was an offshoot of the KKK. He testified that the White Knights also engaged

in violent criminal activity.5

      Detective Woodside then stated that both of these groups associate

themselves with particular symbols, such as swastikas, and also associate

themselves with specific historical figures, such as Adolf Hitler. He related that

members of these groups commit violent activities while incarcerated.

      During a voir dire examination while the jury was excused, the State then

questioned Detective Woodside about photographs of appellant’s tattoos, which


      5
       … Over an objection by appellant’s counsel, the trial court admitted a
completed Tarrant County jail classification form (based on answers given by
appellant during the book-in process) which indicated that appellant was a
member of the White Knights and that appellant had problems with “blacks and
Mexicans.” Testimony indicated that the White Knights are a gang that was
formed in the Texas prison system. The classification form also indicated that
appellant was a daily user of methamphetamine and that he had previously
served time in prison.

                                        5
depicted, among other images, a swastika and the faces of Adolf Hitler, George

Rockwell (the founder of the American Nazi Party), and Reinhard Heydrich (one

of the architects of the Holocaust and the man considered by Hitler to be his

successor). Detective Woodside admitted that while the tattoos indicated that

appellant had negative character traits, they did not specifically identify

appellant as a member of a particular white supremacist group, and a person

could have such tattoos without belonging to any particular group. Detective

Woodside also conceded that he was not an expert on the philosophical

principles of white supremacist groups and their connection with criminal

activity.

      After the conclusion of the voir dire examination, appellant’s counsel

argued that the photographs were an avenue of political expression, that they

were insufficient to establish appellant’s link to any particular criminal

organization, and that there was no evidence that appellant’s robberies were

racially motivated. Appellant’s counsel therefore contended that admission of

the photographs would punish appellant for exercising his constitutional rights

and would unduly prejudice him.6 The State responded by asserting that the


      6
       … Despite arguing that the photographs should be excluded, Appellant’s
counsel stipulated to the admissibility of some white supremacist literature
appellant had possessed.       Appellant’s counsel also stipulated to the
admissibility of “pen packs” which established that appellant had previously

                                      6
photographs related to appellant’s general reputation and his character and

were therefore admissible in the punishment phase of a trial. After hearing

these arguments, the trial court overruled appellant’s objection to the

photographs and granted appellant a running objection to all evidence relating

to the tattoos. 7

      In its closing argument, the State contended that appellant should have

received a life sentence because, in part, his tattoos demonstrated that he had

a hateful, malicious character. In response, appellant’s counsel asserted that

appellant had joined the White Knights in prison as an avenue of survival, that

there was no evidence that the crimes he had pled guilty to were racially

motivated, and that appellant had exercised his constitutional rights in

maintaining his white supremacist beliefs. After deliberating, the jury convicted

appellant of each of the four robbery charges (as instructed by the trial court

pursuant to appellant’s guilty pleas), and then sentenced him to forty-five years’

confinement on each charge.




been convicted of six various felony offenses.
      7
       … Several other photographs were later admitted in evidence which
further depicted appellant’s tattoos. For instance, one of these photographs
demonstrated that “White Knights” was tattooed on appellant's left forearm,
and another exhibited a burning cross and three hooded KKK Klansmen, with
one of the Klansmen holding a noose and another holding a shotgun.

                                        7
                       Admission of Tattoo Photographs

      In his sole point, appellant asserts that his sentences should be reversed

because the trial court erred in its decision to admit the photographs of his

tattoos.

      We review a trial court’s decision to admit or exclude evidence under an

abuse of discretion standard. Martin v. State, 173 S.W.3d 463, 467 (Tex.

Crim. App. 2005); Stevens v. State, 234 S.W.3d 748, 786 (Tex. App.—Fort

Worth 2007, no pet.). Under this standard, if “the ruling was correct on any

theory of law applicable to the case, in light of what was before the trial court

at the time the ruling was made,” then we must uphold the trial court’s

decision. Martin, 173 S.W.3d at 467. The trial court’s ruling must stand as

long as it was “at least within the zone of reasonable disagreement.” Id.

      The trial court’s evidentiary decision must be reasonable in light of all

relevant facts. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App.

1997). However, the “mere fact that a trial judge may decide a matter within

his discretionary authority in a different manner than an appellate judge in a

similar circumstance does not demonstrate that an abuse of discretion has

occurred.” Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003).

      Further, even if erroneous, the admission or exclusion of evidence is a

non-constitutional error governed by rule 44.2(b) of the Texas Rules of

                                       8
Appellate Procedure if the trial court’s ruling merely offends the rules of

evidence. See Tex. R. App. P. 44.2(b); Solomon v. State, 49 S.W.3d 356, 365

(Tex. Crim. App. 2001); Matz v. State, 21 S.W.3d 911, 912 (Tex. App.—Fort

Worth 2000, pet. ref’d) (op. on remand). 8 Therefore, the error must be ignored

unless it had “a substantial, injurious effect or influence on the jury’s verdict.”

See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); Matz, 21

S.W.3d at 912. In other words, we must uphold the trial court’s judgment if

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

a slight effect.” Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.

1998). Also, improper admission of evidence does not constitute reversible

error if the same facts are proved by other properly admitted evidence. Reyes

v. State, 84 S.W.3d 633, 638 (Tex. Crim. App. 2002); Matz, 21 S.W.3d at

912 (holding that the trial court’s admission of videotaped testimony was not

a reversible error where live testimony established the same facts).

      When a defendant pleads guilty before a jury, the proceeding becomes a

unitary trial where the state may introduce evidence allowing the jury to

intelligently exercise discretion in the assessment of punishment. Carroll v.




      8
       … Rule 44.2(b) states that any error in a criminal case other than
constitutional error that “does not affect substantial rights must be
disregarded.” Tex. R. App. P. 44.2(b).

                                        9
State, 975 S.W.2d 630, 631–32 (Tex. Crim. App. 1998). Evidence of the

defendant’s criminal record, his character, and his reputation is admissible. See

Basaldua v. State, 481 S.W.2d 851, 854 (Tex. Crim. App. 1972); see also

Fuller v. State, 253 S.W.3d 220, 227 (Tex. Crim. App. 2008), petition for cert.

filed, ___ U.S.L.W. ___ (U.S. July 24, 2008) (No. 08-6624) (explaining that

when a “defendant pleads guilty to a jury, the jury need not return any verdict

of guilty,” and that the case “simply proceeds with a unitary punishment

hearing”).

      Evidence is relevant to punishment where it is “helpful to the jury in

determining the appropriate sentence for a particular defendant in a particular

case.” Rodriguez v. State, 203 S.W.3d 837, 842 (Tex. Crim. App. 2006). The

evidence that may be admitted in punishment “is a function of policy rather

than a question of logical relevance,” because “[d]eciding what punishment to

assess is a normative process, not intrinsically factbound.” Sunbury v. State,

88 S.W.3d 229, 233–34 (Tex. Crim. App. 2002) (adding that one of the policy

goals is to provide “complete information for the jury to tailor an appropriate

sentence”).

      Appellant argues that the admission of the photographs depicting his

tattoos improperly directed the jurors to consider his ethnicity, wrongly focused

on his membership in a gang as a sentencing factor, punished him for exercising

                                       10
his First Amendment rights, and unduly prejudiced him by inflaming the jury.

He therefore contends that the photographs should have been excluded. In

support of his argument that the jury was improperly directed to consider his

ethnicity, appellant cites section 3(a)(2) of article 37.07 of the Texas Code of

Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(2) (Vernon

Supp. 2008). That provision states that “evidence may not be offered by the

state to establish that the race or ethnicity of the defendant makes it likely that

the defendant will engage in future criminal conduct.” Id.

      However, the record in this case does not indicate that the photographs

of appellant’s tattoos were offered to establish that appellant would engage in

future criminal conduct merely because he was white. Instead, at the time the

photographs were offered and during closing argument, the State contended

that the photographs established that appellant was connected with criminally

violent groups, that because of this connection he could engage in future

criminal activities, and that the tattoos reflected negatively on appellant’s

general reputation and character. Because the photographs did not focus on

appellant’s race but on his negative character as demonstrated by his beliefs

and associations, no violation of section 3(a)(2) occurred. Id.; see also Hicks

v.   State,   Nos.   05-04-01664-CR,      05-04-01665-CR,      05-04-01666-CR,

05-04-01667-CR, and 05-04-01668-CR, 2005 WL 3540844, at *3 (Tex.

                                        11
App.—Dallas Dec. 28, 2005, no pet.) (not designated for publication)

(upholding the trial court’s admission of photographs depicting white

supremacist tattoos because they were offered “as evidence of appellant’s

selfishness, and his impact on the victims, not as evidence to establish that his

race would make him more likely to engage in future criminal conduct”).

      Next, appellant asserts that the admission of the photographs wrongfully

focused on his membership in white supremacist gangs as a sentencing factor,

relying on Beasley v. State, 902 S.W.2d 452, 455–57 (Tex. Crim. App. 1995).

In Beasley, the Texas Court of Criminal Appeals held that where evidence

indicates that a gang engages in criminal activities and has a negative

reputation in the community, then evidence that a defendant is a member of the

gang is admissible at punishment because it relates to the defendant’s

character.   Id. at 456.   Specifically, the court held that such evidence is

admissible as long as the jury is (1) provided with evidence of the defendant’s

gang membership, (2) provided with evidence of the character and reputation

of the gang, (3) not required to determine if the defendant committed the bad

acts or misconduct, and (4) only asked to consider the reputation or character

of the accused. Id. at 457.

      Here, the jury was provided evidence of appellant’s membership in the

White Knights through one of his tattoos which said “White Knights,” through

                                       12
other tattoos commonly associated with the White Knights, and through a jail

classification form which indicated his membership. Testimony (by two former

gang task force officers) established that the White Knights organization is a

prison gang that engages in violent criminal activity against racial minorities.

As we have noted, the State submitted the photographs for the purpose of

relating appellant’s affiliation with the White Knights to his alleged hateful

character, rather than demonstrating that appellant had participated in a

particular act attributed to the gang. For these reasons, the trial court properly

admitted evidence of appellant’s membership in the White Knights. See id.;

Jones v. State, 944 S.W .2d 642, 653 (Tex. Crim App. 1996), cert. denied,

522 U.S. 832 (1997) (noting that evidence of gang membership is “relevant to

show the character of the defendant”); Stevenson v. State, 963 S.W.2d 801,

803 (Tex. App.—Fort Worth 1998, pet. ref’d) (per curiam).

      Appellant further argues that admission of the photographs violated his

First Amendment right to not have his associations and expressions admitted

against him at sentencing. For this contention, he cites Dawson v. Delaware,

503 U.S. 159, 112 S. Ct. 1093 (1992). In Dawson, a defendant convicted of

capital murder contended that he had a constitutional right forbidding

consideration in his sentencing of any evidence concerning beliefs or activities

that were protected by the First Amendment. Id. at 164; 112 S. Ct. at 1097.

                                       13
Specifically, Dawson contended that evidence showing he was a member of the

Aryan Brotherhood was inadmissible. Id. at 163, 112 S. Ct. at 1096. The

Supreme Court concluded that “the Constitution does not erect a per se barrier

to the admission of evidence concerning one’s beliefs and associations at

sentencing simply because those beliefs and associations are protected by the

First Amendment.” Id. at 165; 112 S. Ct. at 1097. However, because there

was no evidence submitted that the Aryan Brotherhood was a gang that was

associated with criminal activity, or that Dawson’s membership in the Aryan

Brotherhood was related to the murder, Dawson’s membership in the Aryan

Brotherhood was “totally without relevance” to his sentencing proceeding, and

the Supreme Court therefore ruled that such evidence should have been

excluded. Id. at 165; 112 S. Ct. at 1097. In contrast, the Supreme Court

noted that in other cases where evidence of such facts does exist,

      associational evidence might serve a legitimate purpose in showing
      that a defendant represents a future danger to society.            A
      defendant’s membership in an organization that endorses the killing
      of any identifiable group, for example, might be relevant to a jury’s
      inquiry into whether the defendant will be dangerous in the future.

Id. at 166; 112 S. Ct. at 1098.

      Unlike Dawson, in this case evidence was presented that the White

Knights (as well as the KKK, as also portrayed by appellant’s tattoos) are

associated with violent criminal activity and other acts of misconduct in the

                                       14
prison setting. For example, Hurst Police Detective Chad Woodside testified

that members of the White Knights or KKK “may do a crime just to get in the

group, or to prove their status in the group” and that such members are “prone

to be involved in violence and criminal activity.” With this type of testimony

as a background to apply to appellant’s connection with these groups, we

conclude that appellant’s First Amendment rights were not violated. See also

Anderson v. State, 901 S.W.2d 946, 954 (Tex. Crim. App. 1995) (concluding

that “[a]dmission of evidence of membership in a gang whose primary purpose

is illegal activity is not barred by the First Amendment as interpreted by the

Supreme Court in Dawson”); Garcia v. State, 239 S.W.3d 862, 867 (Tex.

App.—Houston [1st Dist.] 2007, pet. ref’d), cert. denied, No. 08-6150, 2008

WL 4107187 (2008) (citing Dawson and upholding the trial court’s admission

of evidence related to the defendant’s gang membership).

       Finally, appellant contends that the admission of the photographs violated

Rule 403 of the Texas Rules of Evidence because they were unfairly prejudicial.

See Tex. R. Evid. 403. Specifically, appellant argues that the photographs

created an undue tendency to suggest a decision on an improper basis and that

they compromised the fairness of the trial.9


       9
           … The title of appellant’s point on appeal also alleges a violation of Rule
401.       Tex. R. Evid. 401. However, appellant admits in the body of his

                                           15
       Under Rule 403, otherwise relevant evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice.

Tex. R. Evid. 403; see Sanders v. State, 255 S.W.3d 754, 760 (Tex.

App.—Fort Worth 2008, pet. ref’d) (explaining that unfair prejudice “arises from

evidence that has an undue tendency to suggest that a decision be made on an

improper basis, commonly an emotional one”); Woodward v. State, 170 S.W.3d

726, 729 (Tex. App.— Waco 2005, pet. ref’d) (noting that “unfair prejudice”

does not exist where the evidence merely “injures the opponent’s case”). In

applying Rule 403, the admission of photographs is “within the sound discretion

of the trial court.”   Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App.

2002) (adding that Rule 403 “favors the admission of relevant evidence and

carries a presumption that relevant evidence will be more probative than

prejudicial”).

      Therefore, under Rule 403, we reverse a trial court’s decision to admit

evidence rarely and only after a clear abuse of discretion. Mozon v. State, 991

S.W.2d 841, 847 (Tex. Crim. App. 1999). Factors considered in our analysis

of a issue regarding Rule 403 are (1) the probative value of the evidence; (2)




argument that the photographs were relevant to appellant’s punishment. For
these reasons, we will limit our analysis as to whether the photographs were
unfairly prejudicial under Rule 403. Tex. R. Evid. 403.

                                      16
the potential to impress the jury in some irrational, yet indelible, way; (3) the

time needed to develop the evidence; and (4) the proponent’s need for the

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

      The choice of tattoos may reflect a defendant’s beliefs that make him

prone to future dangerousness. See Conner v. State, 67 S.W.3d 192, 201

(Tex. Crim. App. 2001); Woodward, 170 S.W.3d at 729 (explaining that “[a]t

the punishment phase of a criminal trial, evidence may be presented as to any

matter that the court deems relevant to sentencing, including evidence of the

defendant’s background or character,” and a “defendant’s choice of tattoos,

like his personal drawings, can reflect his character”); Hicks, 2005 W L

3540844 at *3.

      As we have described, appellant’s tattoos in this case linked him to

groups which (as established by testimony) have criminal connections. For this

reason, we conclude that the photographs depicting the tattoos were probative

of defendant’s character for continuing to engage in criminal activities.10 When

considered against testimony later offered by appellant’s relatives regarding

appellant’s capability for rehabilitation, the State’s need for this type of


      10
        … The State also contends that appellant’s prejudices, as indicated by
his tattoos, contributed to his commission of the burglaries. However, there is
no evidence in the record which signals that the robberies were racially
motivated.

                                       17
evidence becomes clear.       For instance, appellant’s cousin, Rick Sanders,

testified that he believed appellant should be minimally punished because he felt

that appellant did not “want to live this lifestyle,” that appellant had a “passion

for . . . being a responsible citizen,” and that appellant would not “be a threat

to society” if he had an adequate support group. Rita Crouch, appellant’s aunt,

added that appellant is a “very, very loving person, very sweet-hearted,” and

that he “wants deep down to try to do the right thing.” These concepts differ

significantly with the ideas portrayed by tattoos of Adolf Hitler and Klansmen

with shotguns and nooses, among other images.

      Further, there is nothing in the record suggesting that the photographs

caused the jury to behave irrationally in sentencing appellant. Instead, beyond

the evidence regarding appellant’s tattoos and affiliations, the jury was also

provided   with   evidence   substantiating   appellant’s   six   previous   felony

convictions and relating the fear of appellant’s victims during his robberies. 1 1

Also, by sentencing appellant to forty-five years’ confinement, the jury decided

to assess punishment at the middle of the possible range of five to 99 years or

life, which applied to the four robberies.      See Tex. Penal Code Ann. §§




      11
        … A jury note submitted to the court during deliberations indicates that
the jury reviewed appellant’s prior convictions before making its sentencing
decision.

                                        18
12.32(a), 29.03(b). Finally, while a moderate amount of time was needed to

develop testimony regarding appellant’s tattoos and what they portrayed, much

of the testimony and the majority of the exhibits submitted to the jury

concerned other matters.

      For these reasons, we cannot conclude that the trial court abused its

discretion by applying the presumption of admissibility under Rule 403 and

admitting the photographs. See Tex. R. Evid. 403 (stating that to be excluded,

the probative value of evidence must be substantially outweighed by the danger

of unfair prejudice); Hayes, 85 S.W.3d at 815; Mozon, 991 S.W.2d at 846–47.

      Moreover, even if the trial court had erred in its decision to admit the

photographs of appellant’s tattoos, appellant stipulated to the admissibility of

over a hundred pages of documentary evidence indicating the same racial and

religious prejudices displayed by the tattoos. The documents included several

copies of essays, articles, and jokes extolling the “White Race” and demeaning

other people groups.    For example, the literature contained an essay titled

“Death of the White Race” which stated that “Hitler was a kindly Uncle,

provoked into action by Jewish wickedness.” Also contained in the exhibit was

a series of jokes with a printout of a “Federal Nigger Hunting License.” With

these documents admitted by stipulation, we cannot agree with appellant that

the jury was improperly induced “by the highly prejudicial and inflammatory”

                                      19
tattoo evidence as appellant argues in his brief. See Reyes, 84 S.W.3d at 638

(explaining that a “defendant who allows evidence to be introduced from one

source without objection forfeits any subsequent complaints about the

introduction of the same evidence from another source”).

      For these reasons, we hold that the trial court did not abuse its discretion

in admitting evidence of appellant’s tattoos. Therefore, we overrule appellant’s

sole issue.

                                  Conclusion

      Having overruled appellant’s only issue, we affirm the trial court's

judgment.




                                            PER CURIAM




PANEL: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 6, 2008




                                       20
