                                                                            PD-0414-15
                 PD-0414-15                                COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                         Transmitted 4/14/2015 9:50:04 AM
                                                           Accepted 4/15/2015 5:21:08 PM
                                                                             ABEL ACOSTA
                                                                                     CLERK
                          PD-___________


                           IN THE
                 COURT OF CRIMINAL APPEALS
                         OF TEXAS


                      MICHAEL ANDRADA,
                         PETITIONER

                                 v.

                     THE STATE OF TEXAS

                        **********

           Petition in Cause No. 2012-436,468, from the
          137th District Court of Lubbock County, Texas,
               Hon. John J. McClendon III presiding
      and Cause No. 07-13-00278-CR in the Court of Appeals
        for the Seventh Supreme Judicial District of Texas

                        **********

          PETITION FOR DISCRETIONARY REVIEW

                   David Crook, Crook & Jordan
                        Attorneys-at-Law
                          PO Box 94590
                         (806) 744-2082
                         (806) 744-2083 Fax
                       dcrook@nts-online.net

                    Attorney for the Petitioner,
                     MICHAEL ANDRADA




April 15, 2015
                       IDENTITY OF JUDGE, PARTIES, AND COUNSEL
                           (RULE 68.4(a), TEX. R. APP. PROC.)

A complete list of all parties to the trial court’s judgment or order appealed from, and the names
and addresses of all trial and appellate counsel includes:

                                MICHAEL ANDRADA, Petitioner
                                TDCJ#1885819
                                Clements Unit
                                9601 Spur 591
                                Amarillo, TX 79107

                                THE STATE OF TEXAS, Respondent


FOR THE PETITIONER:                                          FOR THE STATE OF TEXAS:

DAVID CROOK, Crook & Jordan                                  MR. JEFF FORD
PO Box 94590                                                 ATTORNEY FOR THE
Lubbock, Texas 79493                                         STATE OF TEXAS
(806)744-2082                                                Office of the District Attorney
 (806) 744-2083 (fax)                                        Lubbock County
State Bar No. 05109530                                       PO Box 10536
Attorney for the Petitioner                                  Lubbock, TX 79408-3536
                                                             (806) 775-1100
TRIAL COURT JUDGE:                                           (806) 775-1154 (fax)

Hon. John J. McClendon, III                                  Hon. LISA McMINN
Lubbock County Courthouse                                    State Prosecuting Attorney
904 Broadway                                                 PO Box 12405
137th District Court, Lubbock County                         Austin, TX 78711
PO Box 10536                                                 (512) 463-1660
Lubbock, TX 79408-3536                                       (512) 463-5724 (fax)
(806) 775-1022
(806) 767-9656 (fax)




                                                                                                     2
                         TABLE OF CONTENTS
                     (RULE 68.4(a), TEX. R. APP. PROC.)

                                                                  PAGE


PARTIES ………………………………………………………...………………………………2

TABLE OF CONTENTS …………………………………………………………………….......3

INDEX OF AUTHORITIES ……………………………………………………………………..4

STATEMENT REGARDING ORAL ARGUMENT ……………………………………………6

STATEMENT OF THE CASE …………………………………………………………………..6

STATEMENT OF PROCEDURAL HISTORY ………………………………………..…..........7

PETITIONER’S GROUNDS FOR REVIEW ………………………………………………........8

THE APPELLATE COURT ERRED BY FINDING THAT THE TRIAL COURT DID
NOT ABUSE ITS DISCRETION IN ALLOWING TESTIMONY OF PETITIONER’S
PURPORTED GANG MEMBERSHIP INTO EVIDENCE IN SENTENCING PHASE,
WHERE THE PROFFERED TESTIMONY WAS NOT SHOWN TO BE RELIABLE.

REASONS FOR REVIEW ……………………………………………………..………………...8

THE DECISION OF THE COURT OF APPEALS CONFLICTS WITH THE
APPLICABLE DECISIONS OF THE COURT OF CRIMINAL APPEALS.

ARGUMENT …………………………………………………...…………...................................9

CONCLUSION AND PRAYER …………………………………………………...…………...12

CERTIFICATE OF COMPLIANCE…………………………………………………………….12

CERTIFICATE OF SERVICE ………………………………………………………………….12

APPENDIX …………………………………………………………………………………......14




                                                                      3
                           INDEX OF AUTHORITIES
                       (RULE 68.4(b), TEX. R. APP. PROC.)

                                                                                     PAGE



Case Law, Federal

United States v. Padilla, 387 F.3d 1087 (9th Cir. 2004)…………………………………….11

State Statutory Law

TEX R. EVID. 702…………………………………………………………………………...8

Case Law, State

Hartman v. State, 946 S.W.2d 60 (Tex. Crim. App. 1997)…………………………………11

Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992)……………………………………11

Lasalle Pipeline, LP. V. Donnell Lands, L.P. (Tex. App.—San Antonio 2011, pet. den.)….9

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)……………………….9

Morris v. State, 361 S.W.3d 649, 656 (Tex. Crim. App. 2011)…………………………….11

Ortiz v. State, 93 S.W.3d 79, 86 (Tex. Crim. App. 2002)…………………………………..11

Rayon v. State, 121 S.W.3d 7, 20 (Tex. App.—Fort Worth 2002)…………………………..9

Sexton v. State, 93 S.W.3d 96, 101 (Tex. Crim. App. 2002)………………………………..11

Vela v. State, 209 S.W.3d 128, 130 (Tex. Crim. App. 2006)……………………………….11

Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000)………………………….9




                                                                                          4
                                          PD-_______


                                        IN THE
                              COURT OF CRIMINAL APPEALS
                                      OF TEXAS


                                    MICHAEL ANDRADA,
                                       PETITIONER

                                                v.

                                    THE STATE OF TEXAS

                                        **********

                         Petition in Cause No. 2012-436,468, from the
                        137th District Court of Lubbock County, Texas,
                               Hon. John J. McClendon presiding
                    and Cause No. 07-13-00278-CR in the Court of Appeals
                      for the Seventh Supreme Judicial District of Texas

                                       **********

                         PETITION FOR DISCRETIONARY REVIEW

                                 David Crook, Crook & Jordan
                                      Attorneys-at-Law
                                        PO Box 94590
                                       (806) 744-2082
                                       (806) 744-2083 Fax

                                   Attorney for the Petitioner,
                                    MICHAEL ANDRADA



TO THE HONORABLE COURT OF CRIMINAL APPEALS:

       COMES NOW MICHAEL ANDRADA, Petitioner, by and through his attorney of

record, DAVID CROOK, and petitions the Court of Criminal Appeals of Texas to exercise its

discretionary jurisdiction to review the judgment of the Court of Appeals for the Seventh District




                                                                                                5
of Texas, Amarillo, Texas. In support of this Petition, he would show this Honorable Court as

follows.
                        STATEMENT REGARDING ORAL ARGUMENT
                            (RULE 68.4(c), TEX. R. APP. PROC.)

      The grounds for review set forth in this petition concern the failure of the court of appeals

to follow binding precedent; oral argument would be helpful to the Court in distinguishing the

factual background of the case as shown in the record inasmuch as the facts of the case play an

important role in defining the implications of Petitioner’s argument.

                                 STATEMENT OF THE CASE
                               (RULE 68.4(d), TEX. R. APP. PROC.)

        On October 30, 2012, Petitioner was charged in a two-count indictment. In Count 1 he

was charged under Health & Safety Code § 481.112(d) with Possession with Intent to Deliver a

Controlled Substance, Methamphetamine, in an amount between 4 and 200 grams (CR p. 7).

The count contained a Drug Free Zone allegation under Health and Safety Code § 481.134, the

premises alleged being a school, Cavazos Middle School. In Count 2 Petitioner was charged

with Unlawful Possession of Firearm under Penal Code § 46.04(a)(1).

           A non-evidentiary pretrial hearing was held in the case on April 26, 2013 (Reporter’s

Record [“RR”] v. 2). Petitioner’s jury trial on guilt-innocence commenced on July 29, 2013 in

the 137th District Court, Hon. John J McClendon presiding. He was convicted on July 31, 2013

(RR v. 6, p. 58). Sentencing proceedings took before the jury on the same day. The jury

sentenced Petitioner to life imprisonment in the Texas Department of Criminal Justice,

Institutional Division (RR v. 6, p. 151, CR pp. 62-65). The Court sentenced Appellant

accordingly.

           Petitioner perfected appeal on August 1, 2013 (CR p. 80).




                                                                                                   6
                       STATEMENT OF PROCEDURAL HISTORY
                          (RULE 68.4(e), TEX. R. APP. PROC.)

         The Seventh Court of Appeals rendered its decision affirming petitioner’s conviction on

March 16, 2015. No motion for rehearing was filed by Petitioner. This petition was then timely

filed.

GROUNDS FOR REVIEW:

THE APPELLATE COURT ERRED BY FINDING THAT THE TRIAL COURT DID
NOT ABUSE ITS DISCRETION IN ALLOWING TESTIMONY OF PETITIONER’S
PURPORTED GANG MEMBERSHIP INTO EVIDENCE IN SENTENCING PHASE,
WHERE THE PROFFERED TESTIMONY WAS NOT SHOWN TO BE RELIABLE.

REASONS FOR REVIEW:

THE DECISION OF THE COURT OF APPEALS CONFLICTS WITH THE
APPLICABLE DECISIONS OF THE COURT OF CRIMINAL APPEALS.




                                                                                                 7
                                         ARGUMENT

GROUNDS FOR REVIEW: THE APPELLATE COURT ERRED BY FINDING THAT THE
TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ALLOWING TESTIMONY OF
PETITIONER’S PURPORTED GANG MEMBERSHIP INTO EVIDENCE IN SENTENCING
PHASE, WHERE THE PROFFERED TESTIMONY WAS NOT SHOWN TO BE RELIABLE.

                                         The Record

      Petitioner’s grounds herein are based on a claim that the evidence the State proffered at

trial of his gang membership was not sufficiently reliable under the requirements of T.R.E. 702

to pass evidentiary muster.

      Before trial, Petitioner filed his Motion for Rule 702 Hearing Re State’s Gang Testimony.

The Court held a relatively long 702 hearing out of the presence of the jury during trial with

testimony from its proffered expert, Billy Koontz of LSO (RR v. 6, pp. 66-94). After hearing the

testimony, the Court overruled Petitioner’s 702 objection to Koontz’s testimony as an expert to

the effect that Appellant was a gang member. Petitioner objected, inter alia, on 702 reliability

grounds. The Court overruled all objections (RR v. 6, pp. 97-99). Petitioner got a running

objection to all gang testimony, Q&A, etc., out of the presence of the jury.

      Before the jury, Koontz testified that in his opinion Petitioner was a member of the North

Side Locos and the West Texas Tango gangs.

                   T.R.E. 702 and the Requirement of Reliability; Standard of Review

      T.R.E. 702 governs the admission of expert testimony. TEX. R. EVID. 702. The

proponent of scientific or technical evidence must show by clear and convincing proof that the

proffered evidence is sufficiently relevant and reliable to assist a fact-finder in understanding the

evidence.

      Expert testimony must be based on a reliable foundation to be admissible. The evidence

must have a reliable basis in the knowledge and experience of the discipline. Expert testimony is



                                                                                                    8
unreliable and thus inadmissible if it is no more than subjective belief or unsupported

speculation. “Expert” testimony that is conclusory or speculative is not admissible. Lasalle

Pipeline, LP. V. Donnell Lands, L.P. (Tex. App.—San Antonio 2011, pet. den.). A trial court

should not consider “expert” opinion based on the assumption of unproven facts. Rayon v. State,

121 S.W.3d 7, 20 (Tex. App.—Fort Worth 2002).

      At a 702 hearing, the trial court is the sole judge of the weight and credibility of the

evidence present, and the court’s ruling on admissibility is reviewed for abuse of discretion.

Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). The reviewing court

considers the trial court’s ruling on the admissibility of scientific evidence in the light of the

evidence presented at the time of the trial court’s ruling. Id. at 542. The reviewing court must

uphold the trial court’s ruling on the admissibility of scientific evidence if it was within the zone

of reasonable disagreement and considers whether the trial court acted without reference to

guiding rules or principles or whether the trial court acted arbitrarily or unreasonably in so

acting. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).

                        Basis of Testimony for the Expert’s Opinion at Trial

      Billy Koontz, the State’s purported gang expert at trial, had from his own testimony never

worked as a gang coordinator, and did not know which numbered region Lubbock pertained to

with regard to gangs. The only document that Koontz had purporting to show Petitioner’s gang

membership was one he had prepared for the instant case (RR v. 6, p. 72). Koontz did not have

anything coming from the Texas Violent Gang Task Force showing Petitioner to be a gang

member (RR v. 6, p. 73). Koontz knew nothing of the availability of a judicial proceeding for

the purpose of contesting being identified as a gang member (RR v. 6, p. 75). Koontz was

unaware of and did not possess any judgment showing that Petitioner had ever been judicially




                                                                                                     9
adjudicated to be a member of a gang (RR v. 6, pp. 76-77). Koontz was unaware of any self-

admission of gang membership on Petitioner’s part (RR v. 6, p. 77). Koontz had no documents

claiming to identify Petitioner as a gang member on the basis of information from a “reliable

informant,” (RR v. 6, p. 77). Koontz had no corroborated identification of Petitioner as a gang

member by an individual of unknown reliability (RR v. 6, p. 77).

       Koontz admitted that he had no photographs (?) of tattoos of known West Texas Gang

members “in the file” (RR v. 6, p. 74). Therefore, he had immediate or direct basis of

comparison in terms of photos of known West Texas gang members to compare with any of

Petitioner’s tattoos (RR v. 6, pp. 74-75). Koontz also claimed that Petitioner associated with

known criminal gang members due to some inconclusive Facebook photos that also showed

many other individuals Koontz never claimed gang membership for (RR v. 6, pp. 77-78).

      Koontz claimed that Petitioner sported “gang colors,” but this was based on one photo of

him wearing an unmarked red T-shirt (RR v. 6, p. 82). Koontz said that Petitioner had “2320”

tattooed on his arm, supposedly referring to the 23rd and 20th letters of the alphabet, those being

“W” and “T,” and referring to the West Texas gang (RR v. 6, p. 89). Koontz said again that he

did not have any photos in his immediate possession to prove his point about any gang tattoos or

symbols (RR v. 6, pp. 85-86). When asked which if any tattoos referred to the North Side Locos

gang, Koontz gave an answer with little semantic content (RR v. 6, p. 89). When cross-

examined about North Side Locos tattoos, Koontz said he “believed” that Petitioner had a tattoo

that said “North, or something” (RR v. 6, p. 91).

     On redirect, the State made it clear that Petitioner, despite a previous prison stint, was not

confirmed in TDCJ as a gang member (RR v. 6, p. 94). Koontz nevertheless opined that

Petitioner was both a North Side Loco and a West Texas Tango member (RR v. 6, p. 96).




                                                                                                      10
    Did the Court of Appeals Err in Holding that the Trial Court Properly Allowed the Gang
                                   Testimony Into Evidence?

      Reliability is one of at least three basic required attributes of scientific or technical

evidence, along with the qualifications of the expert and the proffered testimony’s relevance.

Reliability depends on whether the evidence has its basis in a sound methodology. This requires

a “certain technical showing.” Vela v. State, 209 S.W.3d 128, 130 (Tex. Crim. App. 2006).

In a given instance, the “underlying theory” of an area of inquiry may be reliable, but the State

may fail at trial to produce evidence of the reliability of the technique used. Sexton v. State, 93

S.W.3d 96, 101 (Tex. Crim. App. 2002).

     The Court of Appeals, in affirming the conviction and sentence, cited several cases holding

that the issue of “gang behavior” is a proper subject of expert testimony. See Morris v. State,

361 S.W.3d 649, 656 (Tex. Crim. App. 2011), Ortiz v. State, 93 S.W.3d 79, 86 (Tex. Crim. App.

2002), and United States v. Padilla, 387 F.3d 1087 (9th Cir. 2004) [Opinion of the Court of

Appeals, p. 11]. None of the foregoing cases permitted testimony of gang membership on

anything like the sketchy basis shown here.

       Petitioner avers that the State was allowed to present purported expert testimony of

Petitioner’s supposed gang affiliations without a proper showing of reliability as to that

testimony. The Texas Court of Criminal Appeals has interpreted Rule 702 of the Texas Rules of

Evidence to require a showing that any scientific or technical evidence is both relevant and

reliable. See Hartman v. State, 946 S.W.2d 60 (Tex. Crim. App. 1997), Kelly v. State, 824

S.W.2d 568 (Tex. Crim. App. 1992), along with Vela, supra.         In upholding the Trial Court’s

actions by affirming the case, Petitioner respectfully submits that the Court of Appeals failed to

follow binding precedent.




                                                                                                      11
                        CONCLUSION AND PRAYER FOR RELIEF

       WHEREFORE, PREMISES CONSIDERED, Petitioner MICHAEL ANDRADA, prays

that the Court of Criminal Appeals grant his Petition for Discretionary Review, and that after

submission, this Court reverse the decision of the Court of Appeals and remand the Cause for

new sentencing proceedings.



                                                              Respectfully submitted,

                                                              David Crook
                                                              Crook & Jordan
                                                              Attorney-at-law
                                                              PO Box 94590
                                                              Lubbock, Texas 79493
                                                              (806) 744-2082
                                                              (806) 744-2083 Fax
                                                              dcrook@nts-online.net
                                                              Attorney for the Petitioner,
                                                              MICHAEL ANDRADA

                                                              _/S/ David Crook
                                                              DAVID CROOK
                                                              Texas State Bar No. 05109530

          CERTIFICATE OF COMPLIANCE WITH T.R.A.P. 9.4(i)(2)(D)
      This is to certify that the length of the foregoing Petition for Discretionary Review
conforms with the Texas Rule of Appellate Procedure 9.4, in that the brief, computer-generated,
is 1,406 words, which is no longer than 4,500 words, exclusive of the pages containing the
identity of the parties and counsel, any statement regarding oral argument, the table of contents,
the index of authorities, the statement of the case, the issues presented, the signature, and the
proof of service.
                                                            /s/ David Crook _________________
                                                              David Crook

                                 CERTIFICATE OF SERVICE

       This is to certify that a true and accurate copy of the above and foregoing PETITION



                                                                                                    12
FOR DISCRETIONARY REVIEW was mailed on this day to the Hon. Jeff Ford, attorney for
the State of Texas, at his office address of Office of the District Attorney, PO Box 10536,
Lubbock, TX 79408-3536. It was also mailed to Hon. Lisa McMinn, State Prosecuting Attorney,
P.O. Box 12405, Austin TX 78711, on April 14, 2015.



                                                               /s/David Crook
                                                               David Crook




                                                                                         13
APPENDIX




           14
                                         In The
                                    Court of Appeals
                           Seventh District of Texas at Amarillo

                                         No. 07-13-00278-CR


                                MICHAEL ANDRADA, APPELLANT

                                                  V.

                                THE STATE OF TEXAS, APPELLEE

                                On Appeal from the 137th District Court
                                        Lubbock County, Texas
              Trial Court No. 2012-436,468, Honorable John J. "Trey" McClendon, Presiding

                                          March 16, 2015

                                  MEMORANDUM OPINION
                        Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


          Through four issues, appellant Michael Andrada appeals his conviction and life

sentence in prison for possession of four grams or more but less than 200 grams of

methamphetamine with intent to deliver, enhanced by a prior felony conviction and a

drug-free zone finding.1 The judgment also contains a deadly weapon finding. We will

affirm.


          1
        TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6), 481.112(d) (West 2010). An
offense under section 481.112(d) is punishable by imprisonment for life or for a term of
                                           Background


       As part of a narcotics investigation, Lubbock police officers assisted by a

S.W.A.T. team executed a no-knock search warrant at a two-bedroom residence

occupied by appellant.         As officers entered appellant attempted to flee but was

apprehended.


       A pat-down search yielded a package containing 4.66 grams of a substance that

proved   to   be   methamphetamine.      Also   located   on   appellant’s   person   was   currency  

amounting to $315 in various denominations.              Elsewhere in the residence, officers

found a firearm and body armor. They also located scales, plastic bags, a surveillance

camera, marijuana, spiral notebooks which, according to trial testimony, contained a

record of narcotics transactions, and a substance later identified as a cutting agent for

methamphetamine.


       Officers associated one bedroom with appellant. It contained a bed. A recently

issued  traffic  ticket  found  in  the  room  bore  appellant’s  name.    A  loaded  nine-millimeter

handgun was on the bed.




___________________________
not more than 99 years or less than 10 years, and a fine not to exceed $100,000. TEX.
HEALTH & SAFETY CODE ANN. § 481.112(e) (West 2010). On a showing of a prior felony
conviction, the minimum term of confinement is increased to fifteen years. TEX. PENAL
CODE ANN. § 12.42(c)(1) (West Supp. 2014). If it is shown that an offense under section
481.112(e) was committed in a drug-free zone, the minimum term of confinement is
increased by five years. TEX. HEALTH & SAFETY CODE ANN. § 481.134(c) (West Supp.
2014). Appellant plead true to the prior felony conviction enhancement allegation and
not true to the drug-free zone allegation.


                                                  2
        According to an investigating officer, the other bedroom appeared to be used for

storage. It contained tires and bags. In this bedroom, officers found body armor. 2


        Appellant was charged, convicted, and sentenced as noted.


                                                 Analysis


Admissibility of Body Armor


        Through his first issue, appellant argues the trial court abused its discretion by

admitting evidence of the presence of the body armor discovered in the residence. He

characterizes the error as one involving the admission of evidence of other crimes or

wrongs in violation of rule of evidence 404(b).


        During   testimony   an   officer   explained   body   armor   contains   a   “ballistic   material”  

intended to stop or slow the impact of a bullet. Another officer testified in his opinion a

person dealing narcotics   might   have   “digital  scales,   baggies,   and  a   lot   of   times,   they’ll  

have  firearms,  body  armor,  to  protect  the  narcotics.”      Another  officer  testified  similarly.    

The officer agreed that in the residence police located narcotics, money, body armor

and a firearm. Over objection, the court admitted the body armor into evidence.


        The admissibility of evidence is within the discretion of a trial court and will not be

overturned absent an abuse of discretion. Moses v. State, 105 S.W.3d 622, 627 (Tex.

Crim. App. 2003). If the ruling comes within the zone of reasonable disagreement, an

appellate court should affirm. Id.

        2
           “[B]ody   armor’   means   any   body covering manifestly designed, made, or
adapted  for  the  purpose  of  protecting  a  person  against  gunfire.”    TEX. PENAL CODE ANN.
§ 46.041(a) (West 2011). It is a third-degree felony offense for a previously convicted
felon to possess body armor. Id. at 46.041(b),(c).

                                                      3
        Under rule of evidence 401, evidence is relevant if it makes the existence of a

fact that is of consequence to the determination of the action more probable than it

would be without the evidence. TEX. R. EVID. 401; Moses, 105 S.W.3d at 625. Relevant

evidence is presumed admissible.               TEX. R. EVID. 402; Moses, 105 S.W.3d at 625.

Under rule 404(b), evidence of other crimes, wrongs, or acts is inadmissible to prove a

person’s   character   for   the   purpose   of   showing   action   in   conformity   therewith,   but is

admissible for other purposes such as showing motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident. TEX. R. EVID. 404(b);

Montgomery v. State, 810 S.W.2d 372, 387-88   (Tex.   Crim.   App.   1991)   (op.   on   reh’g);;  

Hollis v. State, 219 S.W.3d 446, 456 (Tex. App.—Austin 2007, no pet.).


        Although as noted possession of body armor by a convicted felon is itself an

offense, the court did not instruct the jury of that fact, nor do we find an indication in the

record the jury otherwise was made aware of it during the guilt-innocence phase of

trial.3 It is our assessment that the body armor was not presented as evidence of a

separate  wrongful  act  under  rule  404(b).    To  assess  appellant’s  challenge  to  admission  

of this evidence we will,  however,  consider  it  as  addressing  the  body  armor’s  relevance.    

See TEX. R. APP. P. 38.1(f)   (issue   in   appellant’s   brief   treated   as   covering   every  

subsidiary question fairly included); 38.9 (briefing rules construed liberally).




        3
           A  limiting  instruction  in  the  charge  pertained  to  evidence  “tending  to  show  that  
the Defendant herein committed offenses other than the offenses alleged against him in
the  indictment.”    The  jury  could  consider  such  evidence  only  for  “determining the motive,
intent,   preparation,   plan,   knowledge.”      Had   the   jury   also   been   told   appellant   was   a  
convicted felon and possession of body armor by a felon is unlawful, the instruction
would guide their consideration of the body armor.


                                                      4
        In its context with the other evidence of narcotics dealings presented, we believe

the   body   armor   was   probative   of   appellant’s   intent   to   deliver   narcotics.      See United

States v. Mays, 466 F.3d 335,  341  (5th  Cir.  2006)  (“The  firearms,  body  armor,  scales,  

measuring cup, and baggies   all   qualify   as   ‘tools   of   the   trade’   that   indicate   that   [the  

defendant]  did  not  intend  to  keep  the  cocaine  base  for  personal  use”);;   United States v.

McDowell, 762 F.2d 1072, 1075-76 (D.C. Cir. 1985) (per curiam) (explaining  “someone

who intends to sell a substantial amount of [a controlled substance] is more likely than

an ordinary drug abuser to fear that others might try to shoot him, and to acquire a

bulletproof vest in order to guard against that danger . . . . The vest was logically part of

the specific equipment [the defendant] might use in selling the drug, and thus tended to

show that [the defendant] actually  intended  to  make  such  sales”).


        Further, the body armor was relevant to the deadly-weapon inquiry. See United

States v. Young, 68 Fed. Appx. 744, 2003 U.S. App. LEXIS 7432, at *3-4 (8th Cir. 2003,

Apr. 21, 2003) (per  curiam)  (bullet  proof  vest  and  ammunition  were  probative  of  felon’s  

possession of firearms and the probative value of evidence was not outweighed by the

danger  of  unfair  prejudice).    “In both the case of drug paraphernalia and drugs and the

case of a bullet-proof vest and a firearm, the relationship between the contraband and

the tools sometimes used with contraband allows a logical inference to be drawn.”    

United States v. Lee, 612 F.3d 170, 184 (3d Cir. 2010).


        Finally, even if considered under rule 404(b), the vest was not offered to prove

appellant’s  character  but  was  “squarely  relevant  on  the  issue  of  intent.”    McDowell, 762

F.2d at 1075.



                                                      5
         Appellant’s  first  issue  is  overruled.  


Improper Jury Argument


         Through his second issue, appellant asserts the prosecutor, during jury argument

in the guilt-innocence phase of trial, misinformed the jury of the law on a deadly weapon

finding   by   stating,   “Now,   Ladies   and   Gentlemen,   you   don’t have to go back there and

say he actually had [the firearm] in his hand. The State does not have to prove that he

actually  was  putting  it  in  his  hand.”    


         Counsel   for   appellant   objected,   saying   the   prosecutor’s   argument   was   a  

misstatement of the law.              The trial court overruled the objection but immediately

instructed the jury,  “The  Jury  is—is  directed,  however,  to  refer  to  the  Court’s  Charge  in  

regards  to  what  the  law  is.”    Earlier  in  his  argument  the  prosecutor  told  the  jury,  “[The  

charge] gives you all the answers you need. If you have a question about the law, and

you refer  back  to  this.”


         The charge included the following deadly-weapon special issue to be answered

only  if  the  jury  first  found  appellant  guilty  of  he  charged  offense:  “Do  you,  the  Jury,  find  

beyond a reasonable doubt that the Defendant used or exhibited a deadly weapon,

namely a firearm, during the commission of the offense for which he has been

convicted?”      The   question   required   the   jury   to   respond   either   “we   do”   or   “we   do   not.”    

The  charge  did  not  define  the  terms  “use”  or  “exhibit”  or  give  the  jury  further  instruction

regarding the application of those terms to this case. The charge contained a general

instruction that undefined terms should be given their common meanings.




                                                          6
        During its deliberation the jury sent out two notes relating to the deadly-weapon

special  issue.    It  first  asked  “what  happens”  if,  having  agreed  to  appellant’s  guilt,  the  jury  

could not agree on the deadly-weapon  question.    Next,  it  inquired  “is  testimony available

for  us  to  review  stating  where  and  how  the  gun  was  discovered?”          


        On  appeal,  appellant  does  not  explain  in  what  sense  the  prosecutor’s  statement  

was   a   misstatement   of   the   law.      “The purpose of closing argument is to facilitate the

jury’s proper analysis of the evidence presented at trial in order to arrive at a just and

reasonable conclusion  based  solely  on  the  evidence.” Harris v. State, 122 S.W.3d 871,

883 (Tex. App.—Fort Worth 2003, pet. refused). In so doing, counsel may correctly

quote or paraphrase the law found in the jury charge. Whiting v. State, 797 S.W.2d 45,

48 (Tex. Crim. App. 1990); see Bess v. State, No. AP-76,377, 2013 Tex. Crim. App.

Unpub. LEXIS 334, at *94 (Tex. Crim. App. Mar. 6, 2013) (not designated for

publication) (explaining during closing argument parties may correctly explain the law

contained  in  the  jury  charge  and  its  application).    “Each  side  is  entitled  to  explain  a  legal  

concept as long as the example given by counsel does not constitute a statement of the

law contrary  to  that  in  the  charge.”    Eckert v. State, 672 S.W.2d 600, 603 (Tex. App.—

Austin 1984, pet. refused).


        The Court of Criminal Appeals in Patterson v. State, 769 S.W.2d 938, 941 (Tex.

Crim. App. 1989), stated that “used  .  .  .  a  deadly  weapon” during the commission of the

offense means that the deadly weapon was employed or utilized in order to achieve its

purpose,   while   “exhibited   a   deadly   weapon” means that the weapon was consciously

shown or displayed during the commission of the offense. Id. “Used. . . during the

commission  of  a  felony  offense” refers to the wielding of a firearm with effect, but also

                                                      7
extends to any employment of a deadly weapon, even its simple possession, if such

possession facilitates the associated felony.                  Id.   One   can   “use” a deadly weapon

without exhibiting it. Id. See Plummer v. State, 410 S.W.3d 855 (Tex. Crim. App. 2013)

(discussing Patterson); Coleman v. State, 145 S.W.3d 649, 655 (Tex. Crim. App. 2004)

(stating,   in   possession   with   intent   to   deliver   case,   defendant’s physical proximity to

deadly   weapon   is   not   determinative   for   deadly   weapon   finding;;   rather,   the   “[t]he real

question is whether the weapons are found to have facilitated [the defendant’s]

possession and intended  distribution  of  the  drugs”); cf. Gale v. State, 998 S.W.2d 221,

225-26 (Tex. Crim. App. 1999) (concluding that the evidence was legally sufficient to

find  defendant  “used”  firearms  found  by  police  in  a  closet  with  marijuana  for  purposes  of  

the deadly weapon special issue).                  In the present case, an officer gave opinion

testimony   that   a   person   dealing   narcotics   might   possess   a   firearm   “to   protect   the  

narcotics.”    Thus  the  jury  could  have  believed  appellant  used  a  firearm  to  facilitate  the  

charged  offense.    The  prosecutor’s  statement  was  not  contrary to the law and charge.


        Appellant’s  second  issue  is  overruled.  


Expert Testimony on Gang Affiliation


        At the punishment phase of trial, an officer rendered opinion testimony

concerning   appellant’s   gang   affiliation.      By   his   third   issue,   appellant   argues   the

testimony should have been excluded because it was not reliable. Following a hearing

outside   the   presence   of   the   jury   the   trial   court   overruled   appellant’s   objections   to   the  

officer’s  testimony,  including  one  raising  reliability.




                                                        8
        The officer testified he has been a licensed peace officer since 1989. In that

capacity,  he  has  worked  in  narcotics  units,  a  police  “gang  unit,”  as  a  robbery  homicide  

detective, and with a DEA task force.                  Currently he investigates offenses including

gang-and narcotics-related offenses. He is trained in gang-related matters, has dealt

with street and prison gangs in Lubbock since 1991, and has taught officers and others

involved in the criminal justice system about gang affiliation and identification. He has

testified in state and federal courts on gang affiliation.


        During testimony the officer identified the Lubbock street gangs, including one

known as the North Side Locos. He also discussed the West Texas prison gang. The

officer explained that certain local street gangs such as North Side Locos do not

operate separately within prisons so their members are inclined to join West Texas for

protection.


        In   the   officer’s   opinion,   those   involved   in   street   gangs   tend   to   obtain   tattoos  

containing symbols and numerals designating affiliation with a particular gang. The

officer  discussed  a  series  of  admitted  photographs  depicting  appellant’s  tattoos.        


        In the photographs, the officer noted a tattoo containing a red bandanna which

he believed was indicative of the North Side Locos, whose color is red. Another tattoo

containing   the   words   “north   side”   identified   with   the   North   Side   Locos.      The   officer  

attributed another tattoo to the North Side Locos gang and West Texas gang based on

red strains in the attire of its characters and the   words   “West   Texas,”   inscribed   on   a  

character’s   cap.      The   officer   agreed   that   the   North   Side   Locos   traffic   in   narcotics   for  

financial gain. This he found represented by tattoo characters with money. The officer



                                                         9
rendered the opinion that appellant is a member of the North Side Locos and the West

Texas Tango.4


       We review a trial court's ruling on the admissibility of expert testimony for an

abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011);

Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010). Generally, testimony

concerning the gang affiliation of a defendant may be relevant and admissible at the

punishment phase of   trial   to   show   the   defendant’s   character.      Garcia v. State, 239

S.W.3d 862, 866-867 (Tex. App.—Houston [1st Dist.] 2007, pet. refused); see TEX.

CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1) (West Supp. 2014).


       In performing its gatekeeper function as to the admissibility of expert testimony, a

trial court must determine that (1) the witness qualifies as an expert by reason of

knowledge, skill, experience, training, or education; (2) the subject matter of the

testimony is appropriate for expert testimony; and (3) admitting the expert testimony will

assist the fact-finder in deciding the case. See TEX. R. EVID. 702; Vela v. State, 209

S.W.3d 128, 131 (Tex. Crim. App. 2006); Rodgers v. State, 205 S.W.3d 525, 527 (Tex.

Crim. App. 2006). These conditions are usually known as qualification, reliability, and

relevance. Vela, 209 S.W.3d at 131.


       Here, the   opinion   testimony   of   the   officer   concerned   “soft”   science.      See

Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000) (distinguishing   “hard”

from   “soft”   sciences). The reliability of soft science evidence may be established by

showing that the field of expertise involved is legitimate, the subject matter of the

       4
       Earlier in his testimony the officer stated his opinion the West Texas gang and
the West Texas Tango gang are the same gang.

                                                10
expert’s  testimony  is  within  the  scope  of  that  field,  and  the  expert’s  testimony  properly  

relies on or utilizes the principles involved in that field. See id.


       The study of gang behavior is a generally accepted field of expertise. Hernandez

v. State, No. 01-06-00779-CR, 2013 Tex. App. LEXIS 5228, at *52 (Tex. App.—Houston

[1st Dist.] Apr. 30, 2013, no pet.) (mem. op., not designated for publication); see Morris

v. State, 361 S.W.3d 649, 656 (Tex. Crim. App. 2011) (“Other generally accepted areas

of expert testimony may involve the gaining of specialized knowledge through

experience or personal research: the behavior of gangs .   .   .”);;   id. at 656 n.31 (citing

Ortiz v. State, 93 S.W.3d 79, 86 (Tex. Crim. App. 2002) (noting   officer   in   sheriff’s  

department rendered expert testimony on prison gangs) and United States v. Padilla,

387 F.3d 1087, 1094 (9th Cir. 2004) (finding expert testimony of a detective based on

his  “extensive experience with Los Angeles street gangs, and the Cuatro Flats gang in

particular”  was  reliable)).


       The   officer’s   testimony   concerning   street   and   prison   gangs,   and   particularly   the  

North Side Locos and the West Texas prison gang, included matters such as gang-

specific words, numbers, and colors, as well as gang purposes like narcotics trafficking

and protection in prison.        Such testimony is within the scope of gang identification

expertise.


       Finally,   the   officer’s   opinion   testimony   was   supported   by   law   enforcement

experience including dealing with street and prison gangs in Lubbock since 1991,

training which included instructing other criminal justice professionals in gang affiliation

and identification, and prior expert testimony in state and federal courts. We find the



                                                    11
trial court did not abuse its discretion by implicitly finding the evidence of gang

identification and affiliation presented through the officer was sufficiently reliable to

permit its admission. See United States v. Thomas, No. 10-4725 and No. 10-4729, 490

Fed. Appx. 514, 2012 U.S. App. LEXIS 15001, at *14-15 (4th Cir. July 20, 2012) (noting

reliability  of  the  testimony  of  a  gang  expert  depends  heavily  on  the  expert’s  knowledge  

and experience rather than the methodology or theory behind it).


        Appellant’s  third  issue  is  overruled.


Omission from the Record of the Charge and Verdict Forms


        In his fourth issue appellant argues the trial court denied him due process by

failing   to   resolve   a   matter   regarding   an   omission   from   the   clerk’s   record   on appeal

pursuant to the procedure of appellate rule 34.5(e).5


        In  his  initial  appellate  brief,  appellant  made  us  aware  that  the  court’s  charge  on  

guilt-innocence   and   the   verdict   forms   were   not   contained   in   the   clerk’s   record.      In   a  

letter to the parties we pointed out appellate rule 34.5(e) and granted appellant time to

pursue relief under the rule and supplement his brief if necessary. The parties did not

reach a stipulation under rule 34.5(e). We are not told the reason. But appellant filed in
        5
            Appellate  rule  34.5(e),  entitled  Clerk’s  Record  Lost  or  Destroyed,  provides:  

        If a filing designated for inclusion in the clerk’s record has been lost or
        destroyed, the parties may, by written stipulation, deliver a copy of that
        item   to   the   trial   court   clerk   for   inclusion   in   the   clerk’s   record   or   a  
        supplement. If the parties cannot agree, the trial court must—on any
        party’s   motion   or   at   the   appellate   court’s request—determine what
        constitutes an accurate copy of the missing item and order it to be
        included  in  the  clerk’s record or a supplement.

TEX. R. APP. P. 34.5(e).


                                                       12
the trial  court  a  “motion  to  supplement  clerk[‘s]  record  on  appeal,”  to  which  he  attached  

unsigned  copies  of  a  charge  and  verdict  forms,  bearing  the  style  of  appellant’s  case  in  

the  trial  court.    His  motion  stated  that  he  believed  his  attachments  were  “correct  copies.”    

Nonetheless,   his   motion   asked   the   court   to   determine   “what   constitutes   an   accurate  

copy”  of   the  missing   jury   charge   and   verdict   forms,  and  order  that   they   be   included   in  

the  clerk’s  record.    The  trial  court  signed  an  order  granting  appellant’s  motion.6 Shortly

thereafter,   a   supplemental   clerk’s   record   containing   appellant’s   motion   and   the   court’s  

order was filed in this court. Within the time allowed, appellant filed a supplemental

brief raising his due process issue. As we understand it, appellant’s   complaint   is  that  

the  trial  court  did  not  render  “a  full  judicial  determination  of  the  issue  .  .  .  .”


         The   State’s   brief   responds   both   to   appellant’s   initial   and   supplemental   briefs.    

With regard to this fourth issue, the State points out it had arranged for the court

reporter   to   submit   a   transcription   of   the   trial   court’s   reading   of   the   guilt-innocence

charge and the deadly-weapon   special   issue   to   the   jury.      A   supplemental   reporter’s  

record was filed containing such a transcription.


         Appellant’s   fourth issue lacks merit. We have no record that appellant notified

the  trial  court  of  his  complaint  that  the  rule  34.5(e)  order  the  court  signed,  or  the  court’s  

action pursuant to the order, denied him due process. Thus, no complaint about the

trial  court’s action is preserved for our review. TEX. R. APP P. 33.1(a). Appellant made

one objection to the charge at trial but does not complain of charge error on appeal.

Although the appellate record still does not contain a verdict form signed by the jury


         6
          From  our  examination  of  the  supplemental  clerk’s  record  containing  the  court’s  
order, it appears the order the court signed was provided by appellant.

                                                         13
foreperson,  the  reporter’s  record  reflects  the  trial  court  asked,  and  was  told,  the  verdict  

was unanimous, and read the verdict. The court then read the special issue and the

affirmative  answer,  and  remarked,  “It  is  signed  by  the  foreperson  of  the  Jury.”    Appellant

did not poll the jury, and raised no objection to the announcement of the verdict. Even

now appellant does not tell us what he thinks may be wrong with the charge or verdict

forms. We further note the charge at punishment, contained in the appellate record,

begins with the recitation that the jury found appellant guilty of the charged offense.

Appellant made no objection to this statement in the trial court and does not complain

about it here.7


        For  all  these  reasons,  we  overrule  appellant’s  fourth issue.


                                             Conclusion

        The judgment of the trial court is affirmed.




                                                                James T. Campbell
                                                                    Justice


Do not publish.




        7
         Appellant was represented at trial by the same attorney who represents him in
this court.

                                                   14
