                                                                       ACCEPTED
                                                                   14-14-00403-cr
                                                    FOURTEENTH COURT OF APPEALS
                                                                HOUSTON, TEXAS
                                                            1/14/2015 12:38:46 PM
                                                              CHRISTOPHER PRINE

  No. 14-14-00403-CR                                                       CLERK



            In the
     Court of Appeals                            FILED IN
           For the                        14th COURT OF APPEALS
                                             HOUSTON, TEXAS
Fourteenth District of Texas
                                          1/14/2015 12:38:46 PM
         At Houston
                                          CHRISTOPHER A. PRINE
                                        Clerk

       No. 1342020
  In the 177th District Court
   Of Harris County, Texas
   
     CEDRIC HOPES
          Appellant
             v.
 THE STATE OF TEXAS
           Appellee
   
 State’s Appellate Brief
   

                                DEVON ANDERSON
                                District Attorney
                                Harris County, Texas

                                NATHAN HENNIGAN
                                Assistant District Attorney
                                Harris County, Texas

                                CLINTON A. MORGAN
                                Assistant District Attorney
                                Harris County, Texas
                                State Bar No. 24071454
                                morgan_clinton@dao.hctx.net

                                1201 Franklin, Suite 600
                                Houston, Texas 77002
                                Tel: (713) 755-5826
                                FAX: (713) 755-5809

                                Counsel for the Appellee

Oral Argument Not Requested
                   Statement Regarding Oral Argument

      The appellant requested oral argument, though he gave no particular

reason why. The State believes the briefs in this case adequately apprise this

Court of the issues and the law, and any marginal benefit from oral argument

does not justify the considerable amount of time that preparation for oral

argument requires of the parties and the Court. Therefore, the State does not

request oral argument.




                                      i
                         Identification of the Parties

Counsel for the State:

      Devon Anderson
            District Attorney of Harris County

      Nathan Hennigan
           — Assistant District Attorney at trial

      Clinton A. Morgan
             Assistant District Attorney on appeal

Appellant:

      Cedric Hopes

Counsel for the Appellant:

      C. Patrick Ngwolo & Robert Alton Jones
            — Counsel at trial

      Alexander Bunin & Daucie Schindler
           — Counsel on appeal

Trial Judge:

      Ryan Patrick
            Presiding judge




                                      ii
                                                     Table of Contents

                                                                                                                                 Page

Statement Regarding Oral Argument .......................................................... i
Identification of the Parties ........................................................................ ii
Table of Contents .......................................................................................... iii
Index of Authorities ....................................................................................... v
Statement of the Case ................................................................................... 1
Statement of Facts ......................................................................................... 1
Summary of the Argument ........................................................................... 2
Reply to Point One
   Neither the appellant’s trial objection nor his appellate complaint are
   responsive to Sgt. Ponder’s testimony. The appellant complains about
   testimony regarding his “gang affiliation,” but Ponder only testified as to the
   meaning of the appellant’s tattoos and said nothing of his gang affiliation. ... 3
      I.        Trial Proceedings ........................................................................................................ 3
           A.      The Daubert hearing and Ponder’s qualifications .................................... 3
           B.      The appellant’s objections .................................................................................. 5
           C.      Ponder’s testimony ................................................................................................ 6
      II. The appellant’s appellate complaint and why it fails .................................. 7
           A. The appellant’s objection and argument do not complain about
           Ponder’s actual testimony. ........................................................................................... 8
           B. The trial court did not abuse its discretion in finding Ponder
           qualified to testify to the content of the appellant’s tattoos. ........................ 9
Reply to Point Two
   The appellant’s second point presents nothing for this Court’s review
   because it provides no argument as to why a relevancy complaint should be
   addressed as a constitutional violation. .......................................................................14




                                                                    iii
Reply to Point Three
   There is no sufficiency review for extraneous offenses presented during the
   punishment phase. Moreover, the State’s evidence proved an extraneous bad
   act beyond a reasonable doubt. ........................................................................................15
Conclusion .................................................................................................... 20
Certificate of Compliance and Service ..................................................... 21




                                                            iv
                                                Index of Authorities



Cases
Aguilar v. State
  29 S.W.3d 268 (Tex. App.—
  Houston [14th Dist.] 2000, no pet.) .................................................................................. 5
Bryant v. State
  340 S.W.3d 1 (Tex. App.—
  Houston [1st Dist.] 2010, pet. ref’d).............................................................................. 12
Coble v. State
  330 S.W3d 253 (Tex. Crim. App. 2010) ........................................................................ 10
Garcia v. State
  239 S.W.3d 862 (Tex. App.—
  Houston [1st Dist.] 2007, pet. ref’d)................................................................................. 5
Malpica v. State
 108 S.W.3d 374 (Tex. App.—
 Tyler 2003, pet. ref’d).......................................................................................................... 17
Rodgers v. State
  205 S.W.3d 525 (Tex. Crim. App. 2006) ........................................................... 9, 10, 11
Smith v. State
  227 S.W.3d 753 (Tex. Crim. App. 2007) ....................................................................... 17
Thompson v. State
  4 S.W.3d 884 (Tex. App.—
  Houston [1st Dist.] 1999, pet. ref’d).............................................................................. 18
United States v. Garza
  566 F.3d 1194 (10th Cir. 2009)........................................................................................ 10


Statutes
TEX. CODE CRIM. PROC. art. 37.07............................................................................................. 17




                                                                 v
Rules
TEX. R. EVID. 702........................................................................................................................... 10




                                                                      vi
To the Honorable Court of Appeals:


                             Statement of the Case

      The appellant was indicted for aggravated robbery with a deadly

weapon. (CR 11). The indictment contained an enhancement paragraph

alleging a prior felony conviction. (CR 11). The appellant pleaded not guilty. (7

RR 11). A jury found him guilty as charged. (CR 331, 332). The trial court

sentenced the appellant to thirty-five years’ confinement. (CR 332). The trial

court certified the appellant’s right of appeal, and the appellant filed a timely

notice of appeal. (CR 335, 336).


                               Statement of Facts

      The appellant does not raise any issues related to his guilt, thus a

detailed recitation of the facts is not necessary.

      Wearing ski masks and wielding pistols, the appellant and Reginald

Hollins committed robbery at a southeast Houston AutoZone. (7 RR 36, 43; 8

RR 109, 121). Hollins held the store manager at gunpoint and forced him to

empty the safe. (8 RR 113-16). Hollins and the appellant then left the store

with approximately $2800 and got into a black Impala driven by Derrick

Hopes. (7 RR 36, 43; 8 RR 93). Police stopped the black Impala a few minutes

later about a block away; inside the car were all three robbers, the bag of

                                         1
money, the implements used in the robbery, and Derrick Hopes’s four-year-old

child.1 (7 RR 36-38, 41; 8 RR 73-73, 84).


                             Summary of the Argument

      The appellant raises three points of error relating to the punishment

phase of the trial. In his first point the appellant claims that the trial court

erred in admitting testimony that he was affiliated with a gang. However, the

trial court did not admit such testimony. The complained-of testimony on

described the appellant’s tattoos, it did not state that he was a gang member,

and the appellant has presented no argument regarding that testimony.

      In his second point, the appellant claims that his constitutional rights

were violated by the State’s failure to admit evidence about gangs. However,

neither at trial nor on appeal has the appellant presented argument or

authority for how that omission is a constitutional violation, thus his

argument should be rejected as inadequately briefed.

      In his third point, the appellant claims that the trial court erred in

considering evidence of a second robbery that was admitted in the

punishment phase because the evidence does not prove, beyond a reasonable

doubt, that he committed that offense. However, there is no sufficiency review


1Trial prosecutor: “Who the hell brings a 4-year-old along on an aggravated robbery spree?
Who does that?” (10 RR 28).
                                            2
for extraneous offenses admitted in the punishment phase. Moreover, whether

or not the State’s evidence proved the appellant’s involvement in a second

robbery, it certainly proved his involvement with an organized armed-robbery

ring, which is an extraneous bad act regardless of the appellant’s involvement

in the second robbery.


                             Reply to Point One


Neither the appellant’s trial objection nor his appellate complaint are
responsive to Sgt. Ponder’s testimony. The appellant complains about
testimony regarding his “gang affiliation,” but Ponder only testified as to
the meaning of the appellant’s tattoos and said nothing of his gang
affiliation.

    I.   Trial Proceedings

            A. The Daubert hearing and Ponder’s qualifications

      Punishment in this case was decided by the trial court. The State’s first

punishment-phase witness was Sgt. Clint Ponder of the Houston Police

Department. The purpose of his testimony was to explain the meaning of the

appellant’s gang-related tattoos. (9 RR 69-70). Prior to his testimony, the

prosecutor explained that the defense wished to have a Daubert hearing

regarding Ponder. (9 RR 54). The parties then proceeded to ask Ponder about

his qualifications, though the court reporter labeled on a portion of this as a

Daubert hearing. (See 9 RR 54-71).

                                      3
      Ponder said he had been a police officer for 17 years and had spent most

of that time in the gang unit. (9 RR 54-55). He said that he had extensive

training related to street gangs, including “attend[ing] numerous conferences

and gang classes,” and that he had also taught “many” classes on the subject. (9

RR 55, 61). Ponder said that he had testified “ten to 15” times in Harris County

courts regarding gang membership, and the trial judge stated that he had

found Ponder to be an expert regarding gangs in previous cases. (9 RR 60, 64).

      Defense counsel asked Ponder whether he had read any “learned

treaties [sic].” (9 RR 64). Ponder said that he did not understand what that

was. (9 RR 64-65). Ponder said that, aside from the various trainings and

conferences he had attended, he learned most of his information from talking

to people “on the street.” (9 RR 67). Ponder described himself as an expert

regarding gang membership and gang identification, and he said that he,

personally, had been responsible entering “almost 700” individuals into Harris

County’s gang database.2 (9 RR 59-61).

      Under questioning from defense counsel, Ponder explained that the

presence of gang-related tattoos on an individual was “a really strong

indicator” as to gang membership, but some additional indicia of gang



2 Ponder said that the database had approximately 20,000 entries, meaning he was
responsible for roughly 3.5% of the entries. (9 RR 59-60).
                                       4
membership was required to enter someone into the database as a registered

gang member. (9 RR 68-69). Ponder said that the testimony he normally

provides regards the meaning of defendants’ tattoos and, based purely on the

tattoos, he does not opine as to whether the individual is a gang member. (9

RR 69-70) (“I’m in here to tell you what tattoos mean and what they

represent.”).


            B. The appellant’s objections

      At the end of the hearing, defense counsel stated that he objected “to the

relevance of this witness, and as to whether or not under Daubert, that he can

make a conclusion as an expert concerning Mr. Hopes and any street gang,

based upon anything he may have observed.” (9 RR 70). The State responded

by citing to two cases (Aguilar v. State, 29 S.W.3d 268 (Tex. App.—Houston

[14th Dist.] 2000, no pet.) and Garcia v. State, 239 S.W.3d 862 (Tex. App.—

Houston [1st Dist.] 2007, pet. ref’d)) that stand for the general principle that

testimony regarding a defendant’s gang affiliation and gang tattoos is

admissible. (9 RR 70). Defense counsel replied by making an objection that

cited to four sections of the Texas constitution and two amendments to the

federal constitution, though he provided no argument as to the relevance of




                                       5
those constitutional provisions. (9 RR 70-71). The trial court overruled these

objections. (9 RR 71).


             C. Ponder’s testimony

      Ponder testified that he observed and photographed the appellant’s

tattoos. (9 RR 72). These photographs were admitted, over defense objection,

as State’s Exhibits 105-18. (9 RR 72, 74-75). Ponder then proceeded to explain

the meaning of several of the appellant’s tattoos, including several that

corresponded with membership in the Crips. (9 RR 75-82) (e.g. “Up top, O.G.,

that stands for original gangster. Right here it says ‘crip for life.’ Right here it

says BK. BK is a common term used by Crips. BK means essentially ‘Blood

Killer’, disrespecting Bloods.”). Ponder explained that the Crips and Bloods

were enemies, and that several of the appellant’s tattoos reflected animosity

toward Bloods. (9 RR 76, 79, 82) (e.g. “And then you also have a character here

of a man who’s holding up a dog’s head, Dawg’s D.A.W.G. Bloods are referred to

as Dawgs. And what he’s doing here is disrespecting Bloods by holding a dog’s

head up in the air.”).

      On cross-examination, Ponder said that he was unaware of when the

appellant got these tattoos. (9 RR 83). Defense counsel asked Ponder whether

“a person who has spent a number of years incarcerated in a juvenile facility


                                         6
when they were very young” might “have a tattoo placed on them” in order to

“keep from being assaulted” by prison gangs, and Ponder said this was

possible. (9 RR 68).


   II.    The appellant’s appellate complaint and why it fails

        On appeal, the appellant presents a lengthy argument questioning, inter

alia, whether “gang affiliation recognition” is a legitimate field of study,

whether Ponder was qualified to testify about it, and — assuming the answers

to those questions was affirmative — whether Ponder “properly … utilized the

principles involved in the field of gang affiliation recognition.” (Appellant’s

Brief at 10-18). The appellant would have this Court believe that determining

gang affiliation is an arcane science that can only be practiced by those with

post-graduate degrees and journal publications when, in fact, gang members

typically display their affiliation in such a manner as to be readily discernible

by the types of people who join street gangs. The State believes that the

meaning of tattoos like “Crippin’ Ain’t Easy” and “Original Gangster” is within

the expertise of a 17-year police veteran who works in the gang division, and

that it is absurd to apply concepts like “methods and procedures of science”

here.




                                       7
             A. The appellant’s objection and argument do not complain
                about Ponder’s actual testimony.

      The appellant’s complaint at trial was that Ponder was not qualified to

“make a conclusion as an expert concerning [the appellant] and any street

gang, based upon anything he may have observed.” (9 RR 70). The import of

this objection, when viewed in light of the questions defense counsel asked

Ponder, was that Ponder could not opine as to whether the appellant was

actually a gang member. This is how the appellant views his objection on

appeal, as his argument complains about Ponder’s “testimony regarding [the

appellant’s gang affiliation.” (See, e.g., Appellant’s Brief at 13 (“There was no

testimony establishing statistical standards and techniques used in his

designation of an individual as a gang member.”)).

      However, Ponder did not testify that the appellant was a gang member.

All he did was to give some general background regarding the Crips and

Bloods, and to describe the meaning of the appellant’s tattoos. (See 9 RR 70

(“I’ll say what the tattoos mean and … it’s open to the interpretation of the

Court.”)).

      An analogous hypothetical might be a defendant with several tattoos in

a foreign language, say, French. Anyone who had an extensive, long-term

involvement with the French language and culture might be able to interpret


                                       8
the language in the tattoos and explain any idioms contained in the tattoos.

But that same witness, without any knowledge of the defendant, would

probably be unable to testify that the defendant was a Frenchman. Those are

plainly two different types of testimony.

      In this case, all Ponder testified to was the content of the appellant’s

tattoos. Neither at trial nor on appeal has the appellant actually objected to

this testimony. This Court should reject the appellant’s first point because it

presents nothing for review.


            B. The trial court did not abuse its discretion in finding
               Ponder qualified to testify to the content of the appellant’s
               tattoos.

      Even if this Court believes the appellant’s trial objection and appellate

complaint adequately raise the issue of Ponder’s qualification, the appellant’s

first point still fails because Ponder was adequately qualified to testify about

the appellant’s tattoos. A trial court’s determination of an expert witness’s

qualifications is reviewed only for an abuse of discretion. Rodgers v. State, 205

S.W.3d 525, 527-28 (Tex. Crim. App. 2006).

      The appellant cites to cases regarding the admissibility of scientific

evidence, and to how to analyze evidence from the soft sciences. (See

Appellant’s Brief at 11-14 (citing, inter alia, Coble v. State, 330 S.W3d 253 (Tex.


                                        9
Crim. App. 2010)). However, interpreting the meaning of tattoos is not a

science at all.

      Rule of Evidence 702 governs the admissibility of testimony regarding

“scientific, technical, or other specialized knowledge.” TEX. R. EVID. 702. Before

providing such expert testimony, the proponent of the evidence must

demonstrate that the witness is qualified “by knowledge, skill, experience,

training, or education” to provide the testimony. Ibid.

      Courts have widely recognized that law enforcement officers, through

their experience, often acquire specialized knowledge that qualifies them to

testify as experts on aspects of the criminal world that, while not rising to the

level of a science, are outside the realm of common knowledge. See, e.g., United

States v. Garza, 566 F.3d 1194, 1199 (10th Cir. 2009) (rejecting “wooden”

application of factors mentioned in Daubert to every expert witness and

holding that police officer was qualified, under Rule 702, to testify regarding

“the use of firearms in the drug trade”). In Rodgers, the Court of Criminal

Appeals provided several factors for appellate courts to look at when

determining whether a trial court abused its discretion in admitting expert

testimony on non-scientific matters: the complexity of the subject, how

conclusive the expert’s opinion is, and how central the testimony is to the

resolution of the case. Rodgers, 205 S.W.3d at 528. Essentially, the more
                                       10
complex the subject, the more conclusive the opinion, and the more central

the testimony to the resolution of the case, the more stringent courts should

be regarding expert qualifications. Ibid.

      In Rodgers, the State called a fingerprint examiner, Jumper, to testify

regarding tire tracks and shoe prints. Id. at 526. Jumper testified he “had never

graduated from college, had never written articles on tire prints, had only a

few days of class work specific to the matching of shoe and tire imprints, had

testified only twice before regarding tire-print comparisons,” and that the

“bulk” of his job was doing fingerprint analysis. Id. at 529. The defendant

objected based on Jumper’s “relative lack of experience, training, and

education in the specific area of shoe- and tire-imprint comparison.” Ibid. The

trial court overruled the objection, and Jumper testified that the defendant’s

shoes and tires were consistent with impressions found at the scene of the

crime. Id. at 529-30. The Court of Criminal Appeals held that tire impression

testimony was “liberally allowed” because “the field of tire and shoe

comparisons is not particularly complex, the witness’s opinions are not

conclusive, and consequently, they are generally not pivotal to the resolution

of the case.” Id. at 534.

      In Bryant v. State, the defendant was charged with aggravated sexual

assault of a child, and the State offered evidence from a police officer
                                       11
regarding the predatory grooming of children by sex offenders. Bryant v. State,

340 S.W.3d 1, 7 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). The

defendant objected that the officer was not qualified; he had been working as

an investigator of crimes against children for less than two-and-a-half years,

but he had received training regarding crimes against children and had been

to "conferences and all kinds of different training.” Id. at 7-8. The trial court

overruled the defendant’s objections and allowed the witness to testify

regarding various ways in which sexual predators build rapport with their

victims. Id. at 8.

       On appeal, the First Court looked at the various Rodgers factors and

determined that the trial court did not abuse its discretion. Id. at 9-10. First,

“the field of the witness’s expertise was not particularly complex,” as

“grooming” consisted of little more than the “relatively common-sense

proposition that an adult must establish some level of rapport with a child

before being able to manipulate the child into sexual conduct.” Id. at 9. Second,

the testimony was not conclusive to any fact issue, it simply provided

background information. Ibid. And third, the testimony was not central to the

State’s case, as it was not “directly relevant to the elements of the charged

crime.” Id. at 10. Therefore, because the witness’s qualifications were marginal



                                       12
to the case, the appellate court could not conclude that the trial court’s

determination of the witness’s qualifications was a clear abuse of discretion.

      In this case, the Rodgers factors show that the trial court did not abuse

its discretion. Ponder testified to the meaning of tattoos, an area that is not

complex. A large part his testimony consisted of simply reading the tattoos

aloud and explaining how that tattoo related to gang activity. (See, e.g., 9 RR 75

(“Right here it says BK. BK is a common term used by Crips. BK essentially

[means] “Blood killer”, disrespecting Bloods.”). The trial court had pictures of

the tattoos that it could examine on its own. Second, Ponder explicitly noted

that his evidence was not conclusive as to whether the appellant was a gang

member. And third, the evidence was not “central” to the State’s punishment

case; the appellant was being punished for the aggravated robbery of an

Autozone, and the gang-tattoo evidence was offered merely as a contextual

guide to the appellant’s life. In this context, the trial court did not abuse its

discretion in determining that Ponder’s extensive experience and training

regarding criminal street gangs was adequate to allow him to testify about the

appellant’s tattoos.




                                       13
                              Reply to Point Two


The appellant’s second point presents nothing for this Court’s review
because it provides no argument as to why a relevancy complaint should
be addressed as a constitutional violation.

      In his second point of error, the appellant claims that Ponder’s

testimony violated his state and federal constitutional rights because the State

did not elicit sufficient information regarding gangs. (Appellant’s Brief at 19).

The appellant’s complaint in this point regarding Ponder’s testimony is that,

because the State did not provide the trial court with contextual evidence

regarding the Bloods and the Crips, Ponder’s testimony was irrelevant.

(Appellant’s Brief at 19). However, neither at trial — where the appellant

made a shotgun objection invoking a half-dozen constitutional provisions —

nor on appeal has the appellant presented any argument as to why this

complaint is one of constitutional dimension and not just a run-of-the-mill

relevancy issue. None of the cases cited by the appellant treat relevancy as a

constitutional concern, and he gives this Court no argument as to why it

should. Accordingly, this Court should reject the appellant’s second point as

inadequately briefed.




                                       14
                                Reply to Point Three


There is no sufficiency review for extraneous offenses presented during
the punishment phase. Moreover, the State’s evidence proved an
extraneous bad act beyond a reasonable doubt.

      In the punishment phase, the State admitted evidence regarding the

robbery of a Family Dollar store six days prior to the AutoZone robbery. (9 RR

85-88). The Family Dollar robbery was conducted in a similar manner to the

AutoZone robbery — two masked black males armed with pistols rushing in

and forcing the store manager to put money into a bag that the robbers

brought with them — and the same black Impala used in the AutoZone

robbery was observed nearby. (9 RR 87-90, 98-100). In his third point of error,

the appellant claims that:

      The trial court violated [the appellant’s] substantial rights when it
      improperly considered evidence of an extraneous robbery at the
      punishment portion of [the appellant’s] trial when [the
      appellant’s] involvement in that robbery was not sufficiently
      supported by the record.

(Appellant’s Brief at 21).

      Defense counsel did not object when this evidence was admitted, but

when the prosecutor referenced the Family Dollar robbery during closing

argument defense counsel objected based on the lack of evidence that the

appellant was involved in the robbery. (10 RR 27). The trial court responded


                                       15
by noting that the evidence was admitted without objection, and then stating:

“[A]s the finder of fact, I’ll determine what I believe … what was or was not

proven in the punishment phase.” (10 RR 27).

      Shortly before pronouncing sentence, the trial court expressed some

disgruntlement at the lack of evidence regarding certain matters in the

punishment phase. (10 RR 29). First, while there was evidence that the

appellant, while a juvenile, had murdered his uncle, there was also some

hearsay testimony that the appellant had killed his uncle in response to some

sexual or physical abuse; the trial court seems to have wanted more

information on this point. (See 10 RR 29).

      Second, the trial court noted the evidence concerning the Family Dollar

robbery: “And while, your face apparently was not picked out by the women at

the robbery a week before this, the [modus operandi] was the same. The bag

was identified, the masks were identified, the car, the license plate, all of that.”

(10 RR 29).

      The trial court then noted that it should, perhaps, levy a harsh sentence

based on the fact that a co-defendant in the AutoZone robbery had received a

life sentence from a jury. (10 RR 30). The trial court then assessed punishment

at confinement for thirty-five years. (10 RR 30).



                                        16
      Code of Criminal Procedure Article 37.07 allows, in the punishment

phase, the introduction of extraneous bad acts that are shown beyond a

reasonable doubt to have been committed by the defendant. TEX. CODE CRIM.

PROC. art. 37.07 §3(a)(1). This is, by its terms, an evidentiary rule, not a rule

that entitles a defendant to sufficiency review of the evidence presented

against him in the punishment phase. See, e.g., Malpica v. State, 108 S.W.3d

374, 378-79 (Tex. App.—Tyler 2003, pet. ref’d). The only review to which a

defendant is entitled is whether the trial court abused its discretion in

admitting the evidence. Ibid. As the appellant did not object to the admission

of the robbery evidence in this case, there is no ruling on admissibility for this

Court to review and it should reject the appellant’s third point.

      The appellant presents his argument as a due-process claim, but that,

too, fails. The appellant notes the Court of Criminal Appeals’s dicta from Smith

v. State, 227 S.W.3d 753 (Tex. Crim. App. 2007), that it would violate due

process if extraneous offenses were factored in a defendant’s sentence despite

the fact that there was “no evidence from any source from which it could be

rationally inferred that the defendant had any criminal responsibility for that

extraneous misconduct.” (Appellant’s Brief at 21 (citing Smith, 227 S.W.3d at

764)). This is certainly true, but not applicable to this case for two reasons.

First, Though the trial court referenced the Family Dollar robbery before
                                       17
pronouncing sentence, its statement was ambiguous as to whether the Family

Dollar robbery was a factor in the sentence. See Thompson v. State, 4 S.W.3d

884, 886 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (“Because the

verdict on punishment in a non-capital criminal case is a general verdict, an

appellate court cannot determine whether the jury considered the evidence of

the extraneous offense or if it affected the jury's determination of

punishment.”). And second, while it may be in dispute as to whether the State

admitted enough evidence to show, beyond a reasonable doubt, that the

appellant committed the Family Dollar robbery, there surely was some

evidence that he was involved; as the trial court noted, the same getaway

vehicle was involved, the same money bag was involved, and the robbers used

the same modus operandi.

      Moreover, even if the State’s proof would not be sufficient to convict the

appellant of the Family Dollar robbery, the facts of that robbery show, beyond

a reasonable doubt, that the appellant was closely connected to a group that

committed multiple armed robberies. The evidence of the Family Dollar

robbery shows that the AutoZone robbery was not a fluke. The appellant’s

involvement with an organized armed-robbery ring surely was relevant to

considering his punishment.



                                      18
      The appellant’s third point should be overruled because he did not

object to the admission of the evidence and thus has not preserved any claim

under Article 37.07. The appellant’s due process claim fails because the State’s

evidence was at least some evidence connecting the appellant to the Family

Dollar robbery, and it was proof beyond a reasonable doubt that the appellant

committed the extraneous bad act of being involved in an organized armed-

robbery ring.




                                      19
                                 Conclusion

      The State respectfully submits that all things are regular and the

judgment of the trial court should be affirmed.

                                                  DEVON ANDERSON
                                                  District Attorney
                                                  Harris County, Texas


                                                  /s/ C.A. Morgan
                                                  CLINTON A. MORGAN
                                                  Assistant District Attorney
                                                  Harris County, Texas
                                                  1201 Franklin, Suite 600
                                                  Houston, Texas 77002-1923
                                                  (713) 755-5826
                                                  Texas Bar No. 24071454




                                      20
                     Certificate of Compliance and Service

      I certify that, according to Microsoft Word’s word counting function, the

portion of this brief for which Rule of Appellate Procedure 9.4(i)(1) requires a

word count contains 3,859 words.

      I also certify that I have requested that efile.txcourts.gov electronically

serve a copy of this brief to:

      Daucie Schindler
      Daucie.Schindler@pdo.hctx.net



                                                 /s/ C.A. Morgan
                                                 CLINTON A. MORGAN
                                                 Assistant District Attorney
                                                 Harris County, Texas
                                                 1201 Franklin, Suite 600
                                                 Houston, Texas 77002-1923
                                                 (713) 755-5826
                                                 Texas Bar No. 24071454


Date: January 14, 2015




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