                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00300-CR


DAVID OYEWOLE FALADE                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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          FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION1

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                                    I. INTRODUCTION

      Appellant David Oyewole Falade appeals his convictions for aggravated

robbery with a deadly weapon while engaging in organized criminal activity and

for burglary of a habitation while engaged in organized criminal activity. In three

issues, Falade contends that the trial court erred by allowing the State to



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       See Tex. R. App. P. 47.4.
introduce certain photographs, by excluding a self-serving hearsay statement,

and by denying his challenge to a veniremember for cause. We will affirm.

                                     II. BACKGROUND

      Terrance Nielsen came home in the early morning, Monday, February 2,

2009, and went to bed while the rest of the family left for work and school.

Although he initially heard a banging noise at the back of the house, he thought

nothing of it, believing the neighbor was doing yard work. He then heard the

stairs creak and opened his eyes to see Falade coming into his bedroom holding

a pistol.   Falade raised the pistol, pointed it at Nielsen, and fired a shot to

Nielsen’s right. Falade then pointed the pistol toward Nielsen’s head, demanding

Nielsen’s money. Nielsen said he did not have his wallet.

      Falade then forced Nielsen through the house, eventually forcing Nielsen

into a closet while Falade continued to pilfer. At one point, Nielsen freed himself,

called 9-1-1, and returned to the closet without Falade knowing he had done so.

Falade then again forced Nielsen through the house in an attempt to find

valuable possessions, eventually forcing him to get under a bed in another

bedroom. Shortly after, Nielsen heard Falade yell. He then heard other voices

yell ―freeze‖ and ―drop the gun.‖

      Officer Bryant Parks and Officer Don Allred arrived shortly after the 9-1-1

call. Parks took position in the front of the house. Allred went to cover the back

of the house. As Allred approached the back door, Falade opened the door and

stepped out, pointing his pistol at Allred. Allred yelled for Falade to drop his gun.


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After a short standoff, Falade threw his pistol down. Allred ordered Falade to lie

on the patio. After hearing Allred issue commands to Falade to get down, Parks

went to the backyard, where Allred had already apprehended Falade. Falade

was in the prone position at Allred’s gunpoint.

      At trial, defense counsel, after the State’s hearsay objection and outside

the presence of the jury, questioned Parks about whether Falade had said

anything to Allred. Parks said that Falade had said, ―They made me do it.‖ The

trial court sustained the State’s objection. Also at trial, the State introduced a

number of photographs, some of which included Falade and other alleged gang

members flashing gang signs. Other photographs contained only Falade holding

a gun, wearing brass knuckles, and wearing a bandana as a mask. Defense

counsel objected to the photographs of Falade holding a gun, wearing brass

knuckles, and wearing the bandana. The trial court overruled Falade’s objection

and allowed the State to introduce the photographs. A jury returned a verdict of

guilty and assessed punishment at thirty-two years’ confinement on each case, to

run concurrently. This appeal followed.

                                     III. DISCUSSION

      A.    Photographs

      In his first issue, Falade argues that the trial court erred by allowing the

State to introduce photographs that display him holding a gun, wearing brass

knuckles, and wearing a bandana as a mask. Specifically, Falade argues that

these photographs ―impermissibly alluded to the commission of extraneous


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offenses and impermissibly introduced character evidence against‖ him.        See

Tex. R. Evid. 404(b). The State argues that Falade failed to object at trial under

rule 404(b) of the Texas Rules of Evidence and has waived this issue for our

review. The State also argues that the photographs were relevant to establish its

case-in-chief. Although Falade’s objection at trial was largely based on rule 403

of the Texas Rules of Evidence, he also objected to the introduction of these

photographs because, according to Falade, the photographs ―[went] to [Falade’s]

specific prior bad act[s].‖ We conclude that Falade has preserved this alleged

error for our review.

      We review the trial court’s determination to admit evidence under an abuse

of discretion standard. See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim.

App. 2003). The trial court does not abuse its discretion unless its determination

lies outside the zone of reasonable disagreement. See Montgomery v. State,

810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g).

      Evidence of extraneous offenses is not admissible as character evidence.

See Tex. R. Evid. 404(b). Such evidence may be admissible, however, if the

evidence has relevance other than to show character conformity. Moses, 105

S.W.3d at 626. Examples within the rules of evidence include ―proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake

or accident . . . .‖ Tex. R. Evid. 404(b). Even relevant evidence offered for a

permissible purpose under rule 404(b) may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid.


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403; Moses, 105 S.W.3d at 626. In determining whether the danger of unfair

prejudice outweighs the probative value of the evidence of an extraneous

offense, we consider (1) how compellingly the extraneous offense evidence

serves to make a fact of consequence more or less probable; (2) the potential of

the evidence to impress the jury in an irrational but indelible way; (3) the time

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

evidence. See Mozon v. State, 991 S.W.2d 841, 847 n.7 (Tex. Crim. App. 1999)

(discussing factors trial court is to consider when determining whether the

probative value of extraneous offense evidence outweighs a claim of prejudice).

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

factors to determine whether photographs are more prejudicial than probative).

      Falade argues that the State introduced the objected-to photographs solely

to show his propensity to commit crimes or bad acts. Thus, Falade contends, the

probative value of the evidence was substantially outweighed by its prejudicial

and inflammatory nature. See Tex. R. Evid. 403. But to carry its burden of

proving Falade’s participation in a criminal street gang, the State was required to

show that Falade and his companions ―continuously or regularly associate in the

commission of criminal activities.‖   Tex. Penal Code Ann. § 71.01(d).       Thus,

some evidence of extraneous offenses would be relevant and, indeed, essential

to meet the State’s burden of proof. See Hernandez v. State, 52 S.W.3d 268,

278 (Tex. App.—Corpus Christi 2001, no pet.) (reasoning that the admissibility of

extraneous activity is necessary to prove that defendant was a member of a


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criminal street gang); see also Roy v. State, 997 S.W.2d 863, 867 (Tex. App.—

Fort Worth 1999, pet. ref’d) (stating that when a defendant is charged with

engaging in organized criminal activity under section 71.02 of the penal code, the

State is entitled to introduce evidence that the defendant was a gang member

and regularly engaged in criminal activities such as the illegal sale and

distribution of drugs).

      The photographs in question, along with other photographs displaying

Falade with other alleged gang members flashing gang signs, were both relevant

and highly probative that Falade and his companions engaged in violent crimes

as members of a gang.2 This series of photographs allowed the State to provide

compelling evidence that made Falade’s alleged involvement as a member of a

criminal street gang more probable than if the photographs had not been

introduced. The photographs are not of a nature that they have the potential to

impress the jury in an irrational but indelible way. And given that the State bore

the burden to prove Falade’s involvement in a street gang, the force of the

photographs was necessary to establish this requirement.       See Chaddock v.

State, 203 S.W.3d 916, 923 (Tex. App.—Dallas 2006, no pet.) (holding that

evidence of a prior assault committed by defendant was relevant to show he


      2
       Falade testified in his own defense. During questioning, Falade admitted
that he was a gang member and also testified to the contents of many of the
pictures that the State admitted into evidence. Falade’s testimony regarding a
number of these pictures was that he was in a gang at the time the photos were
taken and that the photos depicted his membership in that gang.


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engaged in criminal activity and was not offered solely to prove character

conformity). We conclude and hold that the trial court’s determination to admit

into evidence the objected-to photographs does not lie outside the zone of

reasonable disagreement.         See Montgomery, 810 S.W.2d at 391.       Thus, we

overrule Falade’s first issue.

          B.    Self-serving Statement

          In his second issue, Falade contends that the trial court erred by not

allowing him to elicit testimony from Parks that as he was being handcuffed,

Falade said to Allred, ―They made me do it.‖ Falade’s contention is that his

statement was a res gestae statement which should have been admitted as

evidence that he committed the robbery under duress. The State argues that the

statement is a classic self-serving hearsay statement and that the trial court

correctly excluded its admission.

          The determination of admissibility of evidence is within the trial court’s

sound discretion and will not be reversed on appeal absent a clear abuse of

discretion. See Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994);

Gaitan v. State, 905 S.W.2d 703, 708 (Tex. App.—Houston [14th Dist.] 1995, pet.

ref’d).

          Hearsay is defined by the rules of evidence as ―a statement, other than

one made by the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.‖ Tex. R. Evid. 801(d). ―Matter

asserted‖ includes ―any matter explicitly asserted, and any matter implied by a


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statement, if the probative value of the statement as offered flows from

declarant’s belief as to the matter.‖ Tex. R. Evid. 801(c).

         It is the rule in Texas that self-serving declarations are not admissible in

evidence as proof of the facts asserted. See Hafdahl v. State, 805 S.W.2d 396,

402 (Tex. Crim. App. 1990), cert. denied, 500 U.S. 948 (1991); Crane v. State,

786 S.W.2d 338, 353–54 (Tex. Crim. App. 1990); Allridge v. State, 762 S.W.2d

146, 152 (Tex. Crim. App. 1988), cert. denied, 489 U.S. 1040 (1989); Chambers

v. State, 905 S.W.2d 328, 330 (Tex. App.—Fort Worth 1995, no pet.); State v.

Morales, 844 S.W.2d 885, 891–92 (Tex. App.—Austin 1992, no pet.). There are,

however, limited exceptions to this general rule that permit introduction of such

proof.     The exception at issue in this case is whether Falade’s self-serving

declaration was part of the res gestae of the offense or arrest. See Allridge, 762

S.W.2d at 152; Singletary v. State, 509 S.W.2d 572, 576–77 (Tex. Crim. App.

1974).

         One of the factors for determining a res gestae statement in Texas is

―spontaneity.‖ See Allridge, 762 S.W.2d at 152; Rubenstein v. State, 407 S.W.2d

793, 795 (Tex. Crim. App. 1966).        This principle was explained long ago as

follows:

         For a statement to be a part of the res gestae, the declaration must
         deal substantially with, and must grow out of, the main fact so as to
         be spontaneous and not, in any event, a narration of a past event or
         occurrence.     Above everything else, there must exist that
         spontaneity which takes the statement out of the realm of narration
         or premeditation.



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See Allridge, 762 S.W.2d at 152 (quoting Trammell v. State, 145 Tex. Crim. 224,

167 S.W.2d 171, 174 (Tex. Crim. App. 1942)). In Singletary, the Texas Court of

Criminal Appeals elaborated on this standard, noting: ―These principles embrace

such factors as time elapsed, and, more importantly, spontaneity, or whether the

statement was instinctive.‖   509 S.W.2d at 577; see also Fisk v. State, 432

S.W.2d 912, 914–15 (Tex. Crim. App. 1968). And it is well established that the

statements must be generated by an excited feeling that extended without break

or let-down from the moment of the event they illustrate. Hamilton v. State, 138

Tex. Crim. 205, 209, 135 S.W.2d 476, 478 (1940).

      After carefully examining the record before us, we hold that there is

nothing in this record to establish that the trial court abused its discretion by

excluding the complained-of statement. During Falade’s bill of exception, Parks

testified that it was during ―handcuffing procedures‖ that Falade made the alleged

statement. Parks said that while he was unsure of the exact timing of Falade’s

statement, he ―assumed‖ it was made more than two minutes after Falade had

been apprehended. Parks also stated that the statement was made at a time

when the tension of the arrest had ―cease[d].‖ Under this record, we cannot say

whether the ―spontaneity‖ of Falade’s statements existed to take such statements

―out of the realm of narration or premeditation.‖ See Allridge, 762 S.W.2d at 152.

Therefore, we hold that the trial court did not abuse its discretion by excluding

Falade’s self-serving statements. We overrule Falade’s second issue.




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      C.    Vacillating Veniremember

      In his third issue, Falade contends that the trial court erred by denying his

challenge for cause to veniremember 37. Pointing out that veniremember 37 at

one time said that she could not consider the full statutory range of punishment

but later stated that she could consider the evidence before determining what

punishment within the statutory range was appropriate, Falade asks this court to

hold that veniremember 37 ―gave the answers that she thought the person

questioning her wanted to hear, and that she did so with an incomplete

appreciation for the issue she was being questioned about.‖ The State retorts

that veniremember 37 was a classic vacillating veniremember and that the trial

court did not abuse its discretion by denying Falade’s challenge for cause.

      In the case of a vacillating veniremember, we defer to the decision of the

trial court, which was in a position to actually see and hear the veniremember in

the context of the voir dire. Granados v. State, 85 S.W.3d 217, 232–33 (Tex.

Crim. App. 2002), cert. denied, 538 U.S. 927 (2003). Such a ruling will not be

disturbed unless there is no adequate basis in the record to support the ruling.

Vuong v. State, 830 S.W.2d 929, 944 (Tex. Crim. App.), cert. denied, 506 U.S.

997 (1992). Elements such as demeanor and tone of voice, among other things,

are important factors in conveying the precise message intended by the

veniremember. Mooney v. State, 817 S.W.2d 693, 701 (Tex. Crim. App. 1991).

      Here, veniremember 37 initially indicated that she could not consider the

low range of punishment, but she later stated that she was going to wait and hear


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the evidence before deciding what punishment would be appropriate within the

statutory range.    In light of veniremember 37’s apparently contradictory

statements, we defer to the trial judge, who was best positioned to evaluate her

demeanor and voir dire as a whole. See Threadgill v. State, 146 S.W.3d 654,

669 (Tex. Crim. App. 2004). Therefore, we overrule Falade’s third issue.

                                   IV. CONCLUSION

      Having overruled all three of Falade’s issues, we affirm the trial court’s

judgments.




                                                 BILL MEIER
                                                 JUSTICE

PANEL: GARDNER, MCCOY, and MEIER, JJ.

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

DELIVERED: December 1, 2011




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