                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                           NOS. 02-14-00379-CR
                                02-14-00380-CR
                                02-14-00381-CR
                                02-14-00382-CR


RODERICK DIXON                                                  APPELLANT

                                     V.

THE STATE OF TEXAS                                                    STATE


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       FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
      TRIAL COURT NOS. 1352360D, 1352834D, 1352836D, 1376529W

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                       MEMORANDUM OPINION1

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     Appellant Roderick Dixon entered open guilty pleas to two counts of

robbery causing bodily injury and to two counts of aggravated robbery with a

deadly weapon, each alleged in a separate cause.       The trial court found

Appellant guilty on all counts and sentenced him to ten years’ confinement on

     1
      See Tex. R. App. P. 47.4.
both counts of robbery and on one count of aggravated robbery and to twenty

years’ confinement on the second count of aggravated robbery, with all

sentences to run concurrently. In two points, Appellant argues that the trial court

abused its discretion by admitting photographs and a video depicting extraneous

offenses into evidence at the punishment phase of the trial. We affirm.

                                   Background

      On September 14, 2013, J.H. met with a potential buyer of a PlayStation 3

(PS3) that he had listed for sale on Craigslist. When J.H. placed the PS3 on the

hood of the potential buyer’s car, the buyer said, “It’s been a long day,” and three

males, one of whom was Appellant, attacked J.H. One of the attackers, who was

not Appellant, hit J.H. multiple times in the head. The three males took the PS3

and drove away.      The lacerations from the attack on J.H.’s face and head

required stitches.

      On December 1, 2013, J.C. and his son, R.C., met with Tori Bryant, a

potential buyer of a PlayStation 4 (PS4) they had advertised on Craigslist. While

Bryant distracted them, Appellant, Jordan Robinson, and Manuel Torres attacked

J.C. Appellant hit J.C. on the head with a bat while one of the other assailants

took the PS4 and several videogames from J.C. Appellant swung the bat at R.C.

but missed. Appellant, Robinson, and Torres fled. As a result of the attack, J.C.

lost a large amount of blood from a wound on his forehead.

      Appellant, Robinson, Torres, and Gemma Perez went together to pawn the

stolen PS4. Appellant pawned the PS4, along with four of the games that were


                                         2
reported stolen in the robbery.        A detective with the Fort Worth Police

Department located the PS4 at the pawn shop. Appellant’s name was on the

pawn ticket, and the pawn shop clerk later identified Appellant in a lineup.

      After the December 1 robbery, Appellant, Robinson, Torres, and Perez

purchased a Taser and a rubber pellet gun. On December 4, 2013, J.G. and his

girlfriend met with a potential buyer of a PS4 he had posted for sale on Craigslist.

Perez drove Appellant, Torres, Robinson, and Bryant to and from the meeting in

Perez’s sister’s car. J.G. parked next to their vehicle in a mall parking lot, placed

the PS4 on the car’s hood, and discussed the transaction with Perez. One of the

males from Perez’s car approached J.G. from behind; tased him on his neck;

yelled, “You’re getting jacked”; mentioned having a gun; and tased J.G. on his

left hand. Torres pointed the pellet gun at J.G. and demanded the PS4. Torres

yelled to Appellant and Robinson to “[g]et the knife.” J.G. surrendered the PS4,

and the assailants fled in Perez’s sister’s car. J.G. and his girlfriend pursued

them in his vehicle and called 911. They were able to get the license plate

number on Perez’s sister’s car. After the 911 dispatcher told J.G. to discontinue

his pursuit, they returned to the mall, where they met with police officers and

gave them the license plate number.          Mall surveillance video captured the

robbery.   The license plate on Perez’s sister’s car belonged to a vehicle

registered to Perez’s mother.

      On December 5, 2013, the detective who located the PS4 at the pawn

shop determined Appellant had outstanding warrants and went to the apartment


                                         3
where Appellant was living at the time.         S.M.—who identified herself as

Appellant’s ex-girlfriend2—was at the apartment, but Appellant was not.        The

detective showed S.M. the pawn shop surveillance video, and she identified

Appellant as the person pawning the PS4.          She also identified Bryant and

Robinson.

      Appellant was arrested at the apartment on December 12, 2013. During a

consensual search of the apartment, the detective discovered a Taser, along with

the cap Appellant was wearing when he pawned the PS4. Appellant waived his

rights and confessed to committing the three robberies, striking J.C. with a

baseball bat, pawning J.C.’s PS4, and purchasing the pellet gun and Taser with

Robinson, Torres, and Perez.       The detective obtained a warrant to search

Appellant’s car and found the bat and its sales receipt inside. Appellant stated

he was under the influence of marijuana at the time he committed the robberies

and that he needed the money for food and shelter.

      At the punishment phase of the trial, the trial court admitted into evidence a

Presentence Investigation Report, which contained, among other things, the

events set forth above, and heard testimony from the detective, Appellant’s

stepmother, his father, and S.M. Over Appellant’s relevance objection, the trial

court admitted into evidence a YouTube video posted on Bryant’s YouTube

channel and screenshots of Bryant’s YouTube profile page with links to videos

      2
       S.M. testified during the punishment phase of the trial that she and
Appellant considered themselves boyfriend and girlfriend.


                                         4
that she had either commented on or uploaded, which included a link to the

YouTube video.3 The video showed Appellant, Robinson, Bryant, Randal Bracy,4

and S.M. having what S.M. described as a “little kick back” in a hotel room, which

involved “studio time” and smoking and drinking. Appellant was smoking what

appeared to be “some sort of hand-rolled item,” and the parties were discussing

drinking codeine, which the detective testified was an illegal drink made by

“mix[ing] 25 times the amount of codeine cough syrup in with . . . Sprite,

Mountain Dew, et cetera, to kind of give them a high.” They were also rapping

and using racial slurs.   The trial court also admitted a screenshot of S.M.’s

Facebook cover photo in which Appellant appeared to be displaying gang colors

and flashing a gang sign.5

                                Standard of Review

      We review the trial court’s decision to admit or exclude evidence under an

abuse-of-discretion standard.    Martinez v. State, 327 S.W.3d 727, 736 (Tex.

Crim. App. 2010), cert. denied, 131 S. Ct. 2966 (2011); De La Paz v. State, 279

S.W.3d 336, 343 (Tex. Crim. App. 2009). As long as the trial court’s ruling falls


      3
      The State explained to the trial court that the purpose of these
screenshots was to show “how to get to the video.”
      4
       The detective identified Appellant, Robinson, Bryant, and Bracy in the
video. Bracy was one of the participants in the September 2013 robbery. Bracy,
Bryant, Perez, Robinson, and Torres were charged for their participation in the
robberies.
      5
       S.M. testified that Appellant claimed to be part of the Tree Top gang.


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within the zone of reasonable disagreement, we will affirm the trial court’s

decision. Martinez, 327 S.W.3d at 736; Moses v. State, 105 S.W.3d 622, 627

(Tex. Crim. App. 2003).

                                    Analysis

      In a consolidated argument, Appellant contends the trial court abused its

discretion by admitting over his relevance objections the screenshots and the

video because they were not taken in temporal proximity to the offenses and their

minimal probity, if any, was substantially outweighed by their unfair prejudice.

See Tex. R. Evid. 401, 403.

      To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds

for the desired ruling if they are not apparent from the context of the request,

objection, or motion. Tex. R. App. P. 33.1(a)(1); Everitt v. State, 407 S.W.3d

259, 262–63 (Tex. Crim. App. 2013); Sanchez v. State, 418 S.W.3d 302, 306

(Tex. App.—Fort Worth 2013, pet. ref’d). Further, the trial court must have ruled

on the request, objection, or motion, either expressly or implicitly, or the

complaining party must have objected to the trial court’s refusal to rule. Tex. R.

App. P. 33.1(a)(2); Everitt, 407 S.W.3d at 263. A reviewing court should not

address the merits of an issue that has not been preserved for appeal. Ford v.

State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009). Preservation of error is a

systemic requirement that this court should review on its own motion. Reynolds




                                        6
v. State, 423 S.W.3d 377, 383 (Tex. Crim. App. 2014); Gipson v. State, 383

S.W.3d 152, 159 (Tex. Crim. App. 2012).

      When the State offered into evidence a screenshot of S.M.’s Facebook

cover photo in which Appellant appeared to be displaying gang colors and

flashing a gang sign, the trial court asked Appellant if he had any objection to the

exhibit. Appellant stated that he did not. Because Appellant did not object to the

admission of the Facebook cover photo, he has forfeited any complaint that the

trial court abused its discretion in admitting it into evidence. See Tex. R. App. P.

33.1(a)(1); Tex. R. Evid. 103(a).

      As to the YouTube evidence, the State argues that Appellant’s trial

objection did not preserve his arguments under rule 403. Appellant asserts on

appeal that the probative value of the screenshots of Bryant’s YouTube channel

and the video was substantially outweighed by unfair prejudice. See Tex. R.

Evid. 403. But Appellant only objected to the admission of the screenshots and

the video on relevancy grounds. See Tex. R. Evid. 401. His trial objection did

not alert the trial court that he was complaining that their prejudicial effect

outweighed their probative value. See Bekendam v. State, 441 S.W.3d 295, 300

(Tex. Crim. App. 2014) (“The complaining party must [object] . . . clearly enough

for the judge to understand and at a time when the trial court is in a position to do

something about it. . . . We are not hyper-technical . . . but the point of error on

appeal must comport with the objection made at trial.”). Accordingly, Appellant

has forfeited his complaint that the probative value of the screenshots and the


                                         7
video was outweighed by their prejudicial effect. See Sony v. State, 307 S.W.3d

348, 355–56 (Tex. App.—San Antonio 2009, no pet.) (holding relevance

objection to photographs at trial did not preserve appellate argument based on

rule 403); see also Tex. R. App. P. 33.1(a)(1); Tex. R. Evid. 103(a).

      We now turn to Appellant’s argument that the video and the screenshots of

Bryant’s YouTube channel were not relevant because “they could not be

identified to be taken in temporal proximity to the offenses.”          The detective

testified that he did not know when the video was made and that he did not know

if the video was associated with the robbery.         S.M. testified that the video

“happened last year, but it was before any of these robberies occurred.” The

punishment trial took place on September 5, 2014, and the robberies occurred in

September and December 2013.            Thus, the video was made, at most,

approximately nine months before the first robbery.

      Article 37.07, section 3(a) of the Texas Code of Criminal Procedure

governs the admissibility of evidence during the punishment phase of a non-

capital case. Sims v. State, 273 S.W.3d 291, 295 (Tex. Crim. App. 2008); see

Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (West Supp. 2015). Article 37.07,

section 3(a)(1) provides that

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


                                         8
      the defendant or for which he could be held criminally responsible,
      regardless of whether he has previously been charged with or finally
      convicted of the crime or act.

Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1). The definition of “relevant” as

stated in rule 401 does not readily apply to article 37.07. Sims, 273 S.W.3d at

295; see Hayden v. State, 296 S.W.3d 549, 552 (Tex. Crim. App. 2009)

(“Borrowing from the definition of ‘relevant’ in Texas Rule of Evidence 401 is of

little avail because the factfinder’s role during the guilt phase is different from its

role during the punishment phase.”). Evidence is “relevant” to a punishment

determination if that evidence will assist the factfinder in tailoring an appropriate

sentence in a particular case. Sims, 273 S.W.3d at 295. When a defendant

requests community supervision—as the Appellant did—a trial court may

reasonably deem any character trait that pertains to the defendant’s suitability for

community supervision to be a relevant matter for the sentencer to consider.

Sims, 273 S.W.3d at 295.

      Section 3(a)(1) of article 37.07 places no time restriction on punishment

evidence.    See Thompson v. State, 59 S.W.3d 802, 808–09 (Tex. App.—

Texarkana 2001, pet. ref’d); see also Tex. Code Crim. Proc. Ann. art. 37.07,

§ 3(a)(1). “The provisions of article 37.07 do not address the effects, if any, of a

statute of limitations for previous criminal offenses nor do they address the

staleness of bad acts.” Tow v. State, 953 S.W.2d 546, 547–48 (Tex. App.—Fort

Worth 1997, no pet.). Objections based on remoteness go to the weight, not the




                                          9
admissibility, of the evidence. See Thompson, 59 S.W.3d at 808 (citing Nethery

v. State, 692 S.W.2d 686, 706 (Tex. Crim. App. 1985)).

      Here, Appellant’s conduct and lifestyle, as reflected in the YouTube video,

were relevant in determining whether his request for community supervision

should be granted. The time between the events reflected in the video and the

offenses to which Appellant pled guilty did not make the video so remote as to

have no probative value.     Thus, we cannot say the trial court abused its

discretion by admitting the YouTube video and the screenshots of Bryant’s

YouTube channel into evidence at the punishment phase of the trial.

      For these reasons, Appellant’s two points are overruled.6

                                  Conclusion

      Having overruled both of Appellant’s points on appeal, we affirm the trial

court’s judgment.

                                                  /s/ Anne Gardner
                                                  ANNE GARDNER
                                                  JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

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

DELIVERED: February 18, 2016


      6
       Appellant relies heavily on Blackburn v. State, 820 S.W.2d 824 (Tex.
App.—Waco 1991, pet. ref’d). Blackburn involved the relevancy of a photograph
admitted into evidence during the guilt-innocence phase of a trial. After
reviewing Blackburn, we have determined that it is inapplicable to this case.


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