                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-09-00299-CR

NATHAN COLLINS                                                      APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE


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     FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

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                       MEMORANDUM OPINION1
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      In three points concerning the admission of evidence against him,

appellant Nathan Collins appeals his conviction and twenty-five year sentence for

aggravated robbery. We affirm.

                              Background Facts

      On an early morning in March 2006, Dwight Rochon and Deleon Rochon,

Dwight‘s nephew, drove to a Fort Worth bank in a van. Appellant drove to the

same bank with Melinda Lauderdale (appellant‘s girlfriend) and Jarvis Glenn in
      1
       See Tex. R. App. P. 47.4.
Lauderdale‘s car, and he pulled up to an ATM. Glenn got out of the back seat of

the car, approached the van and the ATM, and demanded Dwight‘s money.

Then, standing a few feet away from Dwight, Glenn pointed a sawed-off shotgun

at Dwight‘s stomach and pulled the trigger. Appellant got out of the car to pick up

money that Dwight dropped after being shot. Appellant then drove away.

      Fort Worth Police Department (FWPD) Officer Bryan Gilliam received a

dispatch call, went to the bank, and saw Dwight lying on the ground.

An ambulance took Dwight to a hospital, where he was pronounced dead.

      By happenstance, FWPD Officer L.W. Stout saw the car that appellant had

driven away from the bank.      Officer Stout chased the car and found it near

duplexes on Fitzhugh Court, which is three blocks away from the bank.

An officer eventually found appellant inside an attic of one of the duplexes after

Lauderdale answered the door and gave consent for a search of the duplex.

Officer Stout took appellant, who looked like he had recently used drugs, to the

police station.2

      Lauderdale told the police about what had happened and gave a written

statement. Appellant also confessed to the crime.

      A grand jury indicted appellant with capital murder and aggravated

robbery. The trial court appointed counsel to represent appellant, and after the


      2
        Lauderdale testified that appellant sold drugs. Appellant had previous
drug convictions and was on community supervision for a drug offense when he
participated in the robbery.

                                        2
parties filed numerous pretrial documents, he pled guilty to aggravated robbery in

exchange for the State‘s agreement to waive capital murder.3 The trial court

found appellant guilty, and a few days later, a jury trial began on the issue of his

punishment.4     After hearing evidence from several witnesses, including

appellant‘s cousin and his mother, the jury assessed punishment at twenty-five

years‘ confinement. Appellant filed notice of this appeal.

                              Admission of Evidence

      In three points, appellant argues that the trial court erred by admitting

evidence about a previous robbery that Glenn had committed, Lauderdale‘s fight

with appellant‘s mother that occurred a couple of months before the robbery at

the bank, and appellant‘s gang affiliation.

Standard of review and applicable law

      The code of criminal procedure provides that after a defendant has been

found guilty,

      evidence may be offered by the state and the defendant as to any
      matter the court deems relevant to sentencing, including but not
      limited to the prior criminal record of the defendant, his general
      reputation, his character, an opinion regarding his character, the
      circumstances of the offense for which he is being tried, and . . . any
      other evidence of an extraneous crime or bad act that is shown
      beyond a reasonable doubt by evidence to have been committed by
      the defendant or for which he could be held criminally responsible.

      3
      Aggravated robbery is a first-degree felony that carries a maximum
punishment of life in prison. See Tex. Penal Code Ann. § 12.32(a) (Vernon
Supp. 2010), § 29.03(b) (Vernon 2003).
      4
       Appellant also pled guilty in front of the jury.

                                           3
Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2010); see Cox v.

State, 931 S.W.2d 349, 356 (Tex. App.—Fort Worth 1996), pet. dism’d,

improvidently granted, 951 S.W.2d 5 (Tex. Crim. App. 1997); see also Taylor v.

State, 970 S.W.2d 98, 102–03 (Tex. App.—Fort Worth 1998, pet. ref‘d) (―[T]he

plain language of [article 37.07] supports a broad interpretation in favor of the

admissibility of all relevant . . . evidence, unless the probative value of the

evidence is substantially outweighed by its prejudicial effect.‖). Determining the

evidence that the jury is permitted to hear regarding a defendant‘s punishment is

more a question of policy than of logic. Eichelberger v. State, 232 S.W.3d 225,

228 (Tex. App.—Fort Worth 2007, pet. ref‘d); see 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‖).

      We review a trial court‘s decision to admit or exclude evidence regarding

punishment for an abuse of discretion. See Mitchell v. State, 931 S.W.2d 950,

953 (Tex. Crim. App. 1996); Ramos v. State, 45 S.W.3d 305, 310 (Tex. App.—

Fort Worth 2001, pet. ref‘d). In other words, if the trial court‘s ruling was at least

within the zone of reasonable disagreement, we will not intercede. Ramos, 45

S.W.3d at 310; Tow v. State, 953 S.W.2d 546, 548 (Tex. App.—Fort Worth 1997,

no pet.). The abuse of discretion standard applies to questions of relevance.

Jones v. State, 963 S.W.2d 177, 182–83 (Tex. App.—Fort Worth 1998, pet. ref‘d)

(explaining that ―‗relevancy‘ in the context of a punishment hearing is a normative

process to be employed by the fact finder and is not governed by rule [of

                                          4
evidence] 401‖); see also Hayden v. State, 296 S.W.3d 549, 552 (Tex. Crim.

App. 2009) (―Borrowing from the definition of ‗relevant‘ in Texas Rule of Evidence

401 is of little avail because the factfinder‘s role during the guilt phase is different

from its role during the punishment phase.‖).

Glenn’s previous robbery

         In his first point, appellant contends that the trial court abused its discretion

by admitting evidence about a previous robbery that Glenn committed. During a

hearing outside of the jury‘s presence, Lauderdale explained that earlier on the

evening of the robbery at the bank, she saw Glenn commit another robbery with

the same sawed-off shotgun that he used to kill Dwight. Lauderdale said that

she told appellant about Glenn‘s robbery. Appellant objected to the relevance of

Lauderdale‘s testimony regarding Glenn‘s previous crime, but the trial court

overruled the objection. Lauderdale testified about the same event in front of the

jury.5

         In a conclusory fashion, without citing any support from analogous cases,

appellant contends that this testimony was not relevant. But we hold that, under

the broad standard for admissibility of punishment evidence described above, the

trial court did not abuse its discretion by admitting the evidence. The evidence

was relevant to appellant‘s culpability in the robbery at the bank because it

         5
        Lauderdale also said that months before the robbery at the bank, she
learned that Glenn had shot someone at a gas station, and she told appellant
about that shooting at that time. Appellant does not complain about the trial
court‘s admission of this testimony.

                                             5
reflected poorly on his decision to associate with Glenn that day, especially when

combined with other evidence showing appellant‘s knowledge that Glenn had

previously shot someone. In other words, as explained by the State, ―The jury

could quite rightly find it helpful to learn that [a]ppellant knew (or should have

known) what he was signing up for when he set out to go to the bank with

[Glenn].‖ See Salazar v. State, 90 S.W.3d 330, 335 (Tex. Crim. App. 2002)

(explaining that evidence related to the defendant‘s personal responsibility and

moral culpability for an offense is relevant to the determination of punishment);

Kos v. State, 15 S.W.3d 633, 641 (Tex. App.—Dallas 2000, pet. ref‘d).

      This is especially true when considering appellant‘s strategy of minimizing

his role in the robbery to request a lenient sentence.         During his opening

statement, appellant‘s attorney stated, ―I believe that the evidence is going to

show you that [appellant] merely drove the car and got out and got the money.‖

And during his closing argument, appellant‘s attorney similarly tried to downplay

appellant‘s role in the robbery by stating that Glenn was the ―guy who got out and

shot Dwight Rochon. Jarvis Glenn committed the murder.            It was only after

Dwight Rochon collapsed in the grass that . . . [appellant] gets out of the car and

runs to pick up money, gets back in the car, and he drives away.‖

      We hold that the trial court did not abuse its discretion when it admitted the

evidence about Glenn‘s previous robbery. See Ramos, 45 S.W.3d at 310. Thus,

we overrule appellant‘s first point.



                                         6
Admission of photographs

         In his second point, appellant argues that other testimony from Lauderdale,

in which she described assaults against her by appellant and his mother and

authenticated pictures related to the assaults, was not relevant.         Lauderdale

testified that a couple of months before the robbery at the bank, she had a fight

with appellant. Lauderdale said that as part of the fight, appellant cut her finger

and bruised her head, and then later, appellant‘s mother came to her home and

beat her head.6 The State offered pictures related to the fight into evidence, and

then the following colloquy occurred:

                [DEFENSE COUNSEL:] Ms. Lauderdale, I‘m going to go over
         these pictures with you one by one. First, let me ask you this:
         These -- these were the injuries that you received as the result of the
         fight with his mom, correct?

               A. Yes, ma‘am.

               ....

               Q. Is there -- is this where the fight between you and his mom
         took place?

               A. It‘s the home -- yes.

               Q. Is this where it started?

               A. Yes.

               Q. Okay. What --

               A. Me and him was fighting.


         6
         Lauderdale said that she hit appellant on the leg with a bar during the
fight.

                                              7
      ....

      [DEFENSE COUNSEL]:             Judge, I‘m going to object to
relevance of these pictures. In No. 97, the witness stated she
doesn‘t know who is in this picture.

       No. 90 – let‘s see. No. 90, 91, 92, 93, 94, and 95, and are
pictures of -- of injuries that she received as a result of this incident
with his mother and also are pictures of the fight that she had
between -- of the spots where she had a fight between his mother
and herself.

      ....

        [THE STATE:] Well, [Lauderdale], number one, you said all of
these pictures fairly and accurately depict you and parts of the scene
that -- that happened that night, December 27th of 2005, correct?

      A. Yes.

       Q. And, basically, these are injuries that you received as a
result of both of those assaults, correct, the assault involving his
mom and the assault involving [appellant], correct?

      A. Yes.

      Q. Because you -- basically, you remember telling 9-1-1 how
[appellant] hit you up side your head? Do you remember telling
them that?

      A. Yes.

      Q. Because that’s what he did, correct?

      A. Yes.

      Q. And these injuries reflect -- and these pictures reflect all of
those injuries, correct?

      A. Yes, sir.

      [THE STATE]: Your Honor, we move to enter.

       [DEFENSE COUNSEL]: Your Honor, his mother is not on
trial. My client is the only one on trial. . . . [Lauderdale] has clearly
                                   8
      said on Voir Dire with co-counsel that these photographs are
      photographs of injuries she sustained from [appellant‘s mother], not
      [appellant]. They are not relevant, and we object.

            ....

            THE COURT: I‘ll admit all of the exhibits. [Emphasis added.]

      On appeal, appellant contends that Lauderdale‘s testimony was irrelevant

solely because it related to ―an assault by [appellant‘s mother], not [appellant].‖

But even if we were to assume that pictures relating to an assault by appellant‘s

mother were not relevant to appellant‘s punishment, the excerpt quoted above

shows that the photographs concerned injuries caused by appellant even if they

also displayed injuries caused by his mother.      A defendant‘s prior bad acts,

whether adjudicated or not, are relevant to the jury‘s punishment decision.7

See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1); Tow, 953 S.W.2d at 547–

48.   Because the record belies appellant‘s assertion that the objected-to

photographs related to bad acts by his mother and not by him, we hold that the

trial court did not abuse its discretion by admitting the photographs, and we

overrule his second point.




      7
        Whether an extraneous offense or bad act is established beyond a
reasonable doubt is a question of fact for the jury, not a preliminary question of
admissibility for the trial court. See Mitchell, 931 S.W.2d at 953–54; Nanez v.
State, 179 S.W.3d 149, 151–52 (Tex. App.—Amarillo 2005, no pet.). The jury
charge instructed the jury, ―You cannot consider the [extraneous crimes or bad
acts] testimony for any purpose unless you find and believe beyond a reasonable
doubt that the defendant committed such other acts . . . .‖

                                        9
Appellant’s gang membership

      In his third point, appellant complains about the trial court‘s admission of

evidence concerning his gang membership.         At trial, the State called FWPD

Detective Armando Garza to testify as an expert about criminal street gangs and

appellant‘s association with the Truman Street Bloods gang.8 Detective Garza

said that appellant‘s chest tattoos included the words ―STOP,‖ ―SIX,‖ and

―Truman St.,‖ which indicated that appellant was a member of the Truman Street

Bloods from the Stop Six neighborhood. Detective Garza also explained that

appellant had other tattoos indicating gang membership.           Detective Garza

testified that the Truman Street Bloods engaged in murders, aggravated

assaults, and narcotics trafficking; he admitted, however, that he could not testify

that appellant engaged in these activities as part of the gang.

      Before Detective Garza testified in front of the jury, appellant objected to

the testimony on the bases that there was no evidence that appellant was a gang

member and that the evidence about his membership was more prejudicial than

probative.9 On appeal, he argues only that the evidence was more prejudicial

than probative under rule of evidence 403 and that the trial court did not ―conduct

a balancing test‖ under that rule. See Tex. R. Evid. 403 (―Although relevant,

      8
       Detective Garza had worked for several years in a gang unit, was
assigned to the FBI Violent Gang Task Force, and attended monthly meetings
about the trends and patterns of gang activity.
      9
       Appellant did not object to the introduction of the photographs of his
tattoos.

                                        10
evidence may be excluded if 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.‖); see also Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App.

2002) (stating that unfair prejudice occurs when the evidence has an undue

tendency to suggest a decision on an improper basis); Jones v. State, 944

S.W.2d 642, 652 (Tex. Crim. App. 1996) (―We have held that Rule 403 requires

exclusion of evidence only when there exists a clear disparity between the

degree of prejudice of the offered evidence and its probative value.‖), cert.

denied, 522 U.S. 832 (1997).

      We cannot agree with appellant‘s arguments. First, we presume that the

trial court conducted a rule 403 balancing test, and a silent record does not imply

otherwise. Williams v. State, 958 S.W.2d 186, 195–96 (Tex. Crim. App. 1997);

see Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998) (―[W]e have

found no error when the judge simply listened to the defendant‘s objections, then

overruled them.‖); Moyer v. State, 948 S.W.2d 525, 531 (Tex. App.—Fort Worth

1997, pet. ref‘d) (―The trial court was not required to announce for the record that

it has completed the balancing test in its own mind, but we may imply from the

record that a proper balancing test was done.‖).

      Second, appellant‘s brief does not explain how the gang-related evidence

was unfairly prejudicial; instead, appellant seems to assume that all evidence of



                                        11
gang involvement is highly prejudicial and should be automatically excluded.10

The court of criminal appeals has upheld the introduction of gang affiliation

testimony in the punishment phase of a trial. See Jones, 944 S.W.2d at 653;

Anderson v. State, 901 S.W.2d 946, 950 (Tex. Crim. App. 1995) (―[G]ang

membership is relevant character evidence and therefore admissible.‖).

Our court and other intermediate appellate courts have also upheld the

admission of such evidence. Stevenson v. State, 963 S.W.2d 801, 803 (Tex.

App.—Fort Worth 1998, pet. ref‘d); see also Garcia v. State, 239 S.W.3d 862,

866–67 (Tex. App.—Houston [1st Dist.] 2007, pet. ref‘d), cert. denied, 129 S. Ct.

505 (2008); Aguilar v. State, 29 S.W.3d 268, 270 (Tex. App.—Houston [14th

Dist.] 2000, no pet.); Chimney v. State, 6 S.W.3d 681, 699 (Tex. App.—Waco

1999, pet. ref‘d).   Based on this authority, we cannot agree with appellant‘s

contention that Detective Garza‘s testimony should have been excluded under

rule 403 because it pertained to appellant‘s gang involvement. In other words,

the evidence was not unfairly prejudicial merely because it linked appellant to the

Truman Street Bloods gang, which, according to Detective Garza, commits

various crimes. See Beasley v. State, 902 S.W.2d 452, 457 (Tex. Crim. App.

1995). We hold that the trial court did not abuse its discretion by admitting

Detective Garza‘s testimony, and we overrule appellant‘s third point.


      10
        Appellant summarily argues, ―Testimony of the Appellant‘s alleged gang
involvement was highly prejudicial. . . . The Trial Court abused its discretion by
allowing the introduction of the gang information into evidence.‖

                                        12
                                Conclusion

      Having overruled all of appellant‘s points, we affirm the trial court‘s

judgment.

                                               PER CURIAM

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.

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

DELIVERED: January 13, 2011




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