                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-196-CR


LACARLTON DEWAYNE MITCHELL                                          APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE

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            FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

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                         MEMORANDUM OPINION 1

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      LaCarlton Dewayne Mitchell appeals his conviction and ninety-nine year

sentence for murder. In a single issue, he argues that the trial court abused its

discretion by admitting evidence concerning Appellant’s gang membership. We

affirm.




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

      Da’Milla Walker was gunned down in a drive-by shooting in front of a

house in Wichita Falls around midnight on June 28, 2005. She was fifteen

years old. Three eyewitnesses who were standing on the sidewalk with the

victim—Shytinka Combs, Miesha McGee, and Damishia Walker—testified that

they and Da’Milla had argued with two other girls, Rafiki Norwood and Shonda

Mitchell (Appellant’s sister), shortly before the shooting. All three eyewitnesses

testified that after the argument, two cars drove slowly down the street

together and stopped in front of the house; then the shooting started.

      Combs testified that she saw Appellant in the first car but did not see him

holding a gun. McGee could not identify the people in the two cars, but she

said that shots were fired from both vehicles. Walker testified that she saw

Appellant in the second car holding something like a machine gun. Combs and

Walker identified Brian Norwood—Rafiki Norwood’s brother—as another shooter

in one of the cars.

      Walker further testified there were five boys outside the house on the

porch before the shooting began, including the deceased girl’s cousin, Cedric,

who was the owner of the house. Walker was sitting on a car and the other

girls were leaning against it. When the shooting started, the girls took cover

and, when the shooting stopped and the cars left, they ran to a house on

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another street. They realized Da’Milla was not with them, and they returned

to the first house to find her on the ground dead.

      During the shooting, over thirty shots were fired at the house from two

weapons. Based on the number, type, and location of shell casings found at

the scene, police determined that the gunmen fired shots at the house in a way

that suggested a drive-by shooting and that shots were also fired from the

porch or driveway toward the street. The medical examiner testified that the

bullet that killed Da’Milla was a .223 caliber bullet fired from an assault rifle like

an M-16.     Tarbara Williams, who was serving time on a federal felon-in-

possession-of-a-firearm charge at the time of trial, testified that a month prior

to the shooting, he had seen Appellant in possession of two assault rifles,

including an M-16 or AK-47.

      Before trial, Appellant filed a motion in limine regarding evidence of

Appellant’s gang affiliation, arguing that there was no evidence that the murder

was gang-related. The trial court denied the motion. During trial, the State

offered testimony from several witnesses concerning Appellant’s gang

membership and gang violence in Wichita Falls that summer between the KEP

gang and the Bloods. Appellant objected to the first instance of such evidence

as irrelevant and as having a prejudicial effect that outweighed its probative




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value. See Tex. R. Evid. 402, 403. The trial court overruled his objections, but

it granted him a running objection to all gang-related evidence.

      Shytinka Combs testified that the men in the victim’s family identified

themselves as members of the Bloods gang and that Appellant and Norwood

are members of the rival KEP gang. Darlene York, custodian of records for the

Wichita County Sheriff’s Department, produced a “special needs” jail housing

form on which Appellant identified himself as a member of KEP. Wichita Falls

Police Lieutenant Tommy Smythe, who worked gang intelligence for the

department with eighteen years of experience, testified that Appellant was

known to police as a member of KEP and that the resident of the house where

the shooting occurred and his companions are known to the police as members

of the Bloods. He further testified about the friction between the Bloods and

KEP, including family members, and drive-by shootings targeting specific

residences with random gunfire.

      The jury found Appellant guilty of murder and assessed punishment at

ninety-nine years in prison and a $10,000 fine, and the trial court sentenced

him accordingly. This appeal followed.




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                                   Discussion

       In his sole point, Appellant argues that the trial court erred by admitting

evidence of his gang affiliation because the evidence was irrelevant and unduly

prejudicial.

       Rule 402 provides that “all relevant evidence is admissible, except as

otherwise provided . . . . Evidence which is not relevant is inadmissible.” Tex.

R. Evid. 402. Evidence is relevant if it has any tendency to make the existence

of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence. Tex. R. Evid.

401.

       Rule 403 allows for the exclusion of otherwise relevant evidence when

its probative value “is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations

of undue delay, or needless presentation of cumulative evidence.” Tex. R. Evid.

403.    Rule 403 favors the admission of relevant evidence and carries a

presumption that relevant evidence will be more probative than prejudicial.

Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App.), cert. denied, 127

S. Ct. 664 (2006) (citing Williams v. State, 958 S.W.2d 186, 196 (Tex. Crim.

App. 1997)).    The burden is on the opponent of the proffered evidence to

demonstrate the prejudicial attributes of the evidence and to show how these

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attributes substantially outweigh the probative value of the evidence. Goldberg

v. State, 95 S.W.3d 345, 367 (Tex. App.—Houston [1st Dist.] 2002, pet.

ref’d), cert. denied, 540 U.S. 1190 (2004). A rule 403 analysis should include,

but is not limited to, the following factors:

      (1) how probative the evidence is;

      (2) the potential of the evidence to impress the jury in some
      irrational, but nevertheless indelible way;

      (3) the time the proponent needs to develop the evidence; and

      (4) the proponent’s need for the evidence.

Shuffield, 189 S.W.3d at 787.       The reviewing court should do more than

decide whether the trial judge did in fact conduct the required balancing

between probative and prejudicial values; the trial court’s determination must

be reasonable in view of all relevant facts. Id.

      In this case, the non-gang-related evidence shows that two or more

people in two cars fired thirty to forty shots, some from an assault weapon, at

a group of teenage girls and a house after the girls had an argument with

Appellant’s and Norwood’s sisters. With this in mind, we turn to the relevance

of and the prejudice arising from the gang-related evidence.

      Evidence of gang affiliation is relevant to show motive for an allegedly

gang-related crime. Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App.


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2002). The State argued that the gang rivalry between Appellant’s gang, KEP,

and the Bloods, to which the victim’s family belonged, showed the killer’s or

killers’ motive for escalating what had been an argument between fourteen- and

fifteen-year-old girls into a fire fight in which over thirty shots were fired and

one of the girls was shot dead. In his closing argument to the jury, Appellant’s

counsel suggested that the surviving girls concocted the entire story about

Appellant’s involvement in the shooting. Appellant’s gang affiliation and the

affiliation of the girls’ relatives in a rival gang tend to show why Appellant and

his fellow gang members would fire so many gun shots at these particular girls

and this particular house. We therefore hold that the trial court did not abuse

its discretion by overruling Appellant’s relevance objection.

      We turn now to the rule 403 factors to determine whether the danger of

unfair prejudice substantially outweighed its probative value. First, as we have

just noted, the evidence was strongly probative of motive for the shooting. See

Shuffeld, 189 S.W.3d at 787.

      Second, the evidence had the potential to impress the jury in an indelible,

though not necessarily irrational, way. See id. The fact of Appellant’s gang

membership and the existence of the feud between KEP and the Bloods makes

a powerful but rational inferential connection between the argument among the

girls and the bloody fusillade that followed. Appellant argues that the mere fact

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of his gang membership had the potential to lead the jury to the irrational belief

that because Appellant was a member of a gang, he must therefore be guilty.

In so arguing, Appellant ignores the middle step in the link between gang

membership and guilt: Appellant was a gang member; therefore Appellant had

a motive to shoot up the family and house of rival gang members; therefore

Appellant is more likely to be guilty. We hold that this second factor weighs

in favor of admitting the gang-related evidence.

      The third factor is the time needed to develop the evidence. See id. As

the State observes, only about thirty-nine pages of the 402 pages of testimony

recorded at the guilt-innocence phase of trial, or about one-tenth of the

testimony, concerned gang-related evidence. Other courts, including the court

of criminal appeals, have held that greater proportions of trial time spent on

extraneous offenses did not militate in favor of their exclusion under rule 403.

See, e.g., Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996)

(holding one-fifth of trial time devoted to extraneous offense was not

excessive); Evans v. State, No. 14-07-00037-CR, 2008 WL 190053, at *6

(Tex. App.—Houston [14th Dist.] Jan. 22, 2008, no pet.) (mem. op., not

designated for publication) (holding one-third of trial devoted to extraneous

offense was not excessive). We likewise hold that one-tenth of the testimony




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was not an excessive amount to spend developing the gang-related evidence

and that this factor does not weigh against admission of the evidence.

      Finally, the State’s need for the evidence was great. Absent the gang-

related evidence, the violence of the attack makes little sense and leaves the

motive open to speculation. Appellant argues that the most consistent way of

looking at the evidence is that the motive for the killing was personal and arose

from the girls’ argument. But while the argument may have been the spark that

lit the fire, it does not explain the ensuing conflagration. The State was entitled

to show motive, i.e., why the argument escalated into a gun fight where one

side fired over thirty shots, and the gang evidence provided the reason.

      Having considered the applicable rule 403 factors, we hold that the trial

court did not abuse its discretion by admitting the gang-related evidence over

Appellant’s relevance and rule 403 objections.           We therefore overrule

Appellant’s sole issue and affirm the trial court’s judgment.

                                            PER CURIAM

PANEL: GARDNER, J.; CAYCE, C.J.; and MCCOY, JJ.

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

DELIVERED: October 23, 2008




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