                                            / / V/5"
                                REF'D NO PDR         0114-15


                          IN   THE     COURT    OF    CEIMINAi
                                                                              ORIGINAL
                                     APPEALS,   AUSTIN




                                 FERNANDO MAGALDE

                                                       PETITIONER
                                                                         COURT OF CRIMINAL APPEALS

                                       V.                                      APR 17 2015

                                THE STATE OF TEXAS                        Abel Acosta. Clerk
                                                       APPELLEE
                                                                                   FILED IN
                                                                        COURT Of CRIMINAL APPEALS
                      On Appeal in Cause NO 20110D0535                            APR 17 2015
                          in the 120th District Court
                                El Paso County,Texas                           Abel Acosta, Clerk
             The Honorable Maria Salas-Mendoza, Judge Presiding


                      PETITION FOR DISCRETIONARY REVIEW
                               ORAL ARGUMENT REQUESTED




Judge                                                          Defense Attorneys at trial
Maria Salas-Mandoza
                                                               M.Clara Hernandez
Attorneys for the State                                        Robert Riley and
Jaime Esparza,                                                 Jaime Gandara
Manuel Arambula                                                ElPaso County Public defender
Nathan Brown                                                   and Assistant Public defender
34th Dist Att                                                  500 E.San Antonio,Room 501
500 E.San Antonio,Room 201,                                    El Paso Texas 79901
El,Paso,Texas 79901
                                                               Appellate Attorney
Appellate Stage                                                M,Clara Hernandez,El Paso
                                                               County Texas
Jaime Esparza,                                                 500 E.San antonio Room 501
                                                               El Paso Texas 79901
                              IN THE COURT OF CRIMINAL APPEALS
                                            AUSTIN,      TEXAS


FERNANDO MAGALDE                                        §
                Petitioner
                                                        §
                                                        §      PD 0-115-05
                                                               App NO 08-01200065-CR
                                                        §      Trial BO 2O11OOJOS035
THE STATE OF TEXAS                                      §
                Appellee
                                                        §

                              PETITION FOR DISCRETIONARY REVIEW
                                  WITH MEMORANDUM IN SUPPORT



TO THE HONORABLE JUDGE OF SAID CCLKT

     Comes   now Fernando Magalde, Pro se hereinafter Magalde in the above styled
and numbered       cause      to file       this     petition for Discretionary Review of the
opinion of        the 8th court          of appeals El Paso County ,Texas Appeal NO 08-
012-00065-CR      , whom affirmed the conivction from the 120th Judicial District
Court    Trail NO 20110D05035 in and unpublished Cpinicft March,..28,2012                      in support
thereof petitioner will show the following
                                                        I

                                 FACTUAL       / PROCEDURAL HISTORY

     Petitioner    was charged by indictment'for a violation of a protective Order
trial    Number    20110D06141,         The       indictment also included that petitioner had
a prior felony conviction for driving while intoxicated, The state subsequently
filed    a    notice     of   Enhancement         and       Habitualization, alleging         r.tree prior
felony       at trial petitioner pleaded not ture to the violation of a protective
order,during the guil / innocence phase the jury found petitioner to be guilty
as    charged     ( CR at page 3 ) the trial then procedded to the punishment stage
(RR 5, 1-5-12-17 ) a plea of not true was entered to the enhancement allegations
(RR5,    17),after oral argument of both parties the jury found the enhancement
/habitualization         paragraphs      true and assessed punishment at (40) forty years
imprisonment       and    a   fine     of     $    10,000 dallor, the judgment            was thereby

     FOOTNOTE
 1, in addition petitcner had been charged in a three count indictmait with Robbery ( Count
 ""' I ) Aggravated Kidnapping ( Count II )And Unlawfull use of a Motor Vehicle ( Count in)
     Upon agreemsnt of the parties ,the trial court consolidated the two cases for a single trial,
     ~^_                                                 •-      -        •-_.._    .    found him guilty
                                _,   . — ^.^            „ =          -,   ,        2 Lesser offense unlawful
                    separate appeal




                                                        -1-
entered     in   accordance with the jurys verdict ( RR5,         ) On appeal petitioner
contends     that     the    trial    court abused it's discretion by admitting evidence
of his gang membership at issue before this Honorable Court ,

                                               II

                                        JURISDICTION


     Pursuant    to    Texas    Rules of Appellate Procedural, Rules 66-1, 66.3 and 68
this honorable court as part of its punitive power has subject matter Jurisdict
ion    to   review     a petition for discretionary review of the opinion of the 8th
court of appeals
                                              III"

                                     ORAL ARGUMENTS REQUESTED


  Oral argument are necessary to establish petitioners substaintial due process
rights      to   a fair and impartial trial where violated by the trial court abuse
                                                       a.

of    discretion      in    allowing the state to introduce the exhibit containing his
gang    membership      at     the   punishmant stage which was clearly in violation of
Rules 401,403 and 404 of the Tex.           R.Evid




                                                -2-
                                                                                           •2.
                                   TABLE OF CONTENTS



Cover   Page                                                                                                                                     0
Factual / Procudural History                                                           .                                                          1
Jurisdiction                                                                                                                                      2

Oral Arguments    Requested                                                        •                                                              2
Table of Contents    ...             .       .                                                                                                    3

Table of Authorities                                                                                        .... 4

Statement of the Case      .......                                                         .            .               .               .5

Statement of Facts     .   .   .         .       .         .                   .           .            .               .               ..        5

issue presented for Review     ...                     .               .           .            .               ... 7
Summary of Argument . . . . . .                                                            .                                .           .        .7
Argument     and Authorities   ....                        .               .               .            .               .               .7
preservative of the error      ......                              .       .           .            -                                            -8
Standard of Review Abuse of Discretion            ....                                     .        .               .               -           -10

Conclusion                                                     -           •           -        -               -               -               - 14

Prayer for Relief     -        -         -        -        •                   -           •        -                               ... 15
Certificate of service     -             .......                                                                                -           -    -15


                               TABLE OF AUTHORITIES



Federal Cases ,

Garcean-v-Woodford, 276 F.2d.769 (20001 )                                                                                                         14

State Case,

Anderson.v.State, 901 S.W. 2d at 949 ( Tex.Crim.App 1995 ) .                                                ,           .               .       .9
Beasley.v.State,902 s.w.2d 452,456 ( Tex.Crim.App 1995 )                                                                                          9
Burks.v.State, 876 S.W. 2d 877,909 ( Tex.Crim.App 1994 )                                                                                          7
Couret-v.State,792 S.W. 2d 107 ( Tex.Crim.App 1990 )                                                                                              13
Garcia, v. State, 201 S.W. 3d 695 ( Tex.Crim.App 2006 )                                                                                           15
Geuder.v.State, 115 S.W. 3d 15 (Tex.Crim.App 2001 ).                                                                                                  8
Gigliobianco.v.State, 210 S.W. 3d at 641,642 ( Tex.Crim,App 2006 ) .                                                            . •.             .9
Heitman.v.State, 815 S.W. 2d at 681,690 (Tex.Crim.App 1991 )                                                                                          7
Idown.v.State, 73 S.W. 3d 918,923.(Tex.Crim.App 2002 ) .                                       ...              .       . .             . .. 8
Kemp.v.State, 846 S.W. 2d at 289,307 (Tex.Crim.App 1992 )                                                                                         14
Klueppel -v.State,Supre 505 S.W. 2d at 552,574 ( Tex.Crim.App 1974 )                                                            .       . . 14
Coffin.v.State 885 S-W- 2d at 140,149 ( Tex- Crim.App 1994 )                                                                                      13




                                                 -3-
Hayos.v.State, 982 S.W. 2d at 419,422 ( Tex. Crim.App 1996 )                .       . io
Lamas.v.State, 707 S.W. d at 566 ( Tex.Crim.App 1986 )              ,   .       .       ,14
Lopez.v.State, 200 S.W. 3d at 246,248 ( Tex.App Houst [14th Dist] 2006 )                13
Maranda.v.State, 253 S.W. 3d 762,769 (Tex.App .Amarillo 20007 no pprt ) ... iq
Massey.v.State, 933 S.W. 2d 532,587 ( Tex. CApp Houst [1st Dist] 1996 ) ... 8
Montgomery.v.State, 810.S.W. 2d 372,387,388 ( Tex. Crim.App 1990 )          .   • • •n
pondexter.v.State, 942 S.W. 2d at 577 ( Tex. Crim.App 1996 )                             9
Rhoades.v.State,934 S.W. 2d 113,121,127 ( Tex.Crim.App 1986 ).....                      io
Robinson.v.State, 16 S.W. 3d at 808, 813 ( Tex. Crim.App 2000)                           e
Roethel.v.State 80 S.W. 3d at 276,278 ( Tex.         App Auston 2000 no pet ) . . .13
Sanchez.v.State, 120 S.W. 3d 366 ( Tex. Crim.App 1999 )                                  8
Schaffer.v.State, 777 S.W. 2d at 114 ( Tex. Crim.App 1985 )                              .7
Steels.v.State, 170 S.W. 3d at 765 ( Tex. App.Waco. 2005 )                                    8
Tellez.v.State, 170 S.W.     3d at 58 ( Tex. Crim.App 2006 ) .      .                         7
webber.v.State, 29 S.W. 3d 226232 ( Tex. App Houst [14th Dist] 2010 ) .             -    ±q
Young.v.State, 137 S.W. 3d 65,70 ( Tex. Crim.App 2004 )         ...     ...             -8
Zillender.v-State,557.S.WW2d 515,517 ( Tex.CR.App 1977 )                                 13

Constitutiona,    Statutes and Rules

Article 37.07 § 3(a) (1)                             ......             ;   ... 7
Artucle 33.1(a)         .   .   .      .   ......              .   .    . .     .       .7-8
Article 44.2 (a)                                                                        13

Rules of Crim Evidence

Rule 401, 403, 404, 404(b),and 405         .                                        3,4,6,




                                               -4-
                                                      STATEMENT OF CASE


    Petitioner Magalde is Now applealing the opinion of the 8th Court of Appeals
and       its       denial        of     Relief        from the Judgment and Punishment assessed by the
120th Judicial District Court El Paso County,Texas for Violation of a protect-
ive order                ( CR at Page 3 ) In which he retrieved a 40 year sentence (RR5,233)
( CR 63,70 ) The appeal was filed on August 15,202 STYLED                                FERNANDO MAGALGE.V.
THE       STATE OF              TEXAS     ,App NO         08-12-00065-CR ,h\-,..> in an unpublished opinion
affirmed            the        conviction         March       28,2014,     The Originial date for filing the
PDR       was       April        27,     2014,     However a letter was sent by petitioner to the El
paso County public defender office requesting them to file a motion for exten-
ion       of        time, which          was     not     timely transmitted to the court of appeals due
to a           clerical          error^ that caused the period for filing the                (PDR) to expire
,     A    Motion         was         later     filed     by the El Paso       Public defender office to the
court          of    criminal          appeals June            13,     2014 seeking and extension , that was
denied on the 16th of June 2014, Petitioner then filed a Writ of Habeas Corpus

Writ       NO        (    WR     82-561-01        )     which was granted January 20,2015, A motion for
extension            of        time     was granted February 2, 2015 thereby extending the period
for filing the PDR until may 11, 2015 PD 115-15 ,


                                                      STATMENT OF FACTS



At        the       trial       of     this     cause     petitioner was found guilty of Violation of a
protective Order on January 24,2012 ( RR4, 98 ) At the punishment phase January
25,       2012,the state was allowed to through multiple sources introduce evidence
pretaining               to petitioners            gang       membership      through Officer Duran, Officer
Pineira,and               Detective           Sanchez, all the Exhibit's 37,38,and 39 confirmed that
petitioner               was     identified        as     a    gang member ( RR5, 88-90 ) Defense counsel
objected             to    the        "Veracity"        of    the information contained in states Exhibit
# 37, ,However over his objection Judge Salas-Mendoza admitted the information
(     RR       5,    90        ),When the state asks if it could public the information to the
jury defense                   counsel        objected        that     it was hearsay ,Then asks the Judge if
it would review-: the information, to determine what if any hearsay was contain
ed        in    the       Exhibit,        after a         bench hearing       the court admitted the exhibits




                                                                 -5-
at      the     conclusion      of   the punishment phase the jury found the   Enhancement
and Habitualization alleging true(RR4,98 CR At P 63 ) The jury assessed punish
ment at (40 ) Forty years in the Texas Department of Criminal Justice Institut
ional     Divisiion       and    a $10,000 fine, ( RR5; at 233 CR p, 70 ),72-73 ) Notice
of     Appeal     containing Cartification of petitioners rights to appeal was filed
on January 30, 2012 (CR 74 )             ,

On appeal petitioner            asserted that the trial court had abused it's discretion
by     allowing     the   state      prosecutor to at the punishment phase admit Evidence
that     he was a Member of the Barrio Azteca Gang,           at issue before this Honor
able Court ,




                                                 -6-
                                              ISSUE PRESENTED FOR REVIEW


           The 8th Court of Appeals Error in holding petitioner fail to preserve
           the issue for appellate review Citing to TEXAS RULE OF APPELLATE PROCEDURE
           33.1(a)


                                              SUMMARY OF THE ARGUMENT

In     a        sole point of Error petitioner challenges the decision of the 8th Court
of appeal,and                  its     opinion      that    he    fail to preserve the issue and will by
and        through        Numerous           Citation      of Case Law demonstrate his trial objection
was sufficient                  to preserve          the issue, although only a general objection to
the        "Varacity"          of      the     information       contained in States Exhibit 37 was made
Citing Tellez.v.State 170 S.W. .2d                         158    (Tex.Crim.App    2006   ) , In addtition
petitioner              will     also        demonstrate     the admission of States Exhibit 37 by the
trial           Court was an abuse of discretion                    Citing Schaffer.v.State 777 S.W.2d.at-"
114 ( Tex.Crim.App.1985 )

                                              ARGUMENT / AUTHORITIES

Petitioner              argues        that    the    failure     of the 8th Court of Appeals to Review
his claim related to the improper admission                            at the     pumishment   phase of his
trial information of his purported gang affilations and activites we're clear
ly     a        violation        of    TEX.R.FJVID      401,403 and 404 ,and Constitutes an abuse of
discretion              on part of the trial court,when overruling defense counsels object
ion        to     the     "Veracity"          ( RR 5,90 ) in a case like this compounded by a lack
of a statutory requirement that it be proven beyond a reasonable doubt,Because
extraneous              offense       evidence       may    be introduced at the punishment hearing of
a trial,Burks.v.State 876 S.W. 2d 877,909 ( Tex.Crim.App.1994 ) ARTICLE 37.07
Section 3(a)

a sentencing              issue       may be        preserved by objection at the punishment hearing
here, the state sought to admit States Exhibit # 37, (RR 5,90 ) while the EecxiKdl
                                                                                                  2
indicates          there        was     only an objection to the gang related evidence, .Whence:
when       the state offered Exhibit 37, into evidence,His objection was sufficient
enough to preserve the issue for appellate review Citing Heitman.v.State 815
S.W.       2d at 681,690.(Tex.Crim.App.1991                         ) Which held that when the objection
or Current ground of exclusion [i]s obvious to the judge and opossing                                 counsel

 FOOTNOTE

21 Petitioner trial objection supports his theory raised on direct appeal that, the evidence in
     Exhibit 37, was irrelevant ana the veracity was prejudice ,and abuse of discretion admitt
      ing it in to evidence at the punishmant phase, , Therefore the 8th court of appeal should
  have reviewed the claim ,since it involved a due process Error




                                                              -7-
                                                                                                                1
no [] waiver results from a general "or' imprecise objection Id 690,Likewise the
1st Court of Appeals Houston in Massey.v.State, 933 S.W. 2d .582,587 (Tex.App
Houst    [1st     Dist]      1996        no pet' )There the court held that Massey objection
that the testimony was getting into extraneous offenses was sufficient object
ion under        Rule     404      (b)     ,Therefore petitioner would argue that although no
objection was           based      on Rule 401 or otherwise Texas Rules of Evidence 403,Or
404 ,The       lack     of such          objection    did no[t] forfeite his rights to complain
on appeal        ,The trial          courts     Abuse    of discretion in allowing the state to
introduce       Book in information related to his gang membership               Citing,Idown.v.
State,73       S.W.     3d .918,923 ( Tex.Crim.App.2002 ) /Because his trial objection
was so clearly obvious to the trial court and opossing Counsel(RR 5, 88-90)
Geuder.v.State 115 S.W. 3d at 13 (Tex.Crim.App 2001 \ Sanchez.v.State 120 S.W.
3d.at 366 and ,Tellez.v.State 170 S.W. 3d at 158/: The.courts there, held that
while    Tellez       trial counsel did not made a trial objection to the trial court
entering of a deadly weapon findings ,The lack of objection did no[t] waive
Tellez rights to complain on appeal that trial court abused it's discretion
by entering such ,Id when there is error of a fundamental "or' Constitutional
Nature     there      need        [N]ot be any specific objection to preserve for appellate
review,3 For Example , In Robinson.v.State 16 S.W. 3d.808.813 (Tex.Crim.App.2000
the court of Criminal Appeals held                    that no objection was needed   or necessary
at the      trial       level      to bring          a claim of inffective Assistance of counsel
for the first time on appeal,.Likewise the Waco Court                    also in steels.v.State
170.SAW.3d. 765         ( Tex.App. Waeoc,'20050held no objection was required for Steels
to bring a Double Jeopardy claim on appeal for the first time, although it
was no[t] properly preserved by a timely trial objection                     , as a primary pur
pose     for requiring a specific and contemporanceous objection is to advise
the     trial    court       of     impending    error and afford the court an opportunity to
a^oid-the error or take corrective action to cure the error, Young.v.State 137
S.W.     .3d    65,70     ( Tex.Crim.App.2004             ) /Thus the reviewing court must first
determine whether petitioner has preserved any potentail error for its review,
,TEX R.App. P 33.1(a)               absents an objection defertdanti'."waives the error unless
the     error    is     fundamental/ that:..is          the   error creates egregious harm, While

      FOOTNOTE

3, Cn appeal petitioner is asserting a due process violation , cause by the trial courts abuse of
   discretion ,the proper standard of review is an abuse of discretion standard Citing Green.v.
   State-934 S.W.. 2d at 92,101-02 ( Tex.Crim.App 1996 )
Rule      401,of       the     Texas       Rule Criminal Evidence, defines Relevant evidence as

evidence        having any tendency to make the existence of any fact of consequence
to     the    determination              of   the    action more probable or Less probable that it

would be without the evidence,                      All Relevant evidence is admissible            under
TEX.R.CRIM.EVID             402, However Relevant Evidence may be excluded ,if its proba-
ive     valve is substantially out weighted by the danger of unfair prejudice,TEX
R.CRIM.EVID          403      ,     At     issue    here      is the punishment phase    TEX.R.EVID 404,
which        provides        that        evidence     maybe      offered at the punishment stage either
by the defendant or prosecution as to the prior                            criminal record of the accused
Citing , Pondexter.v.State,942                       S.W..2d      577.(Tex.Crim.App.1996 ) holding that
although        evidences           of     gangmembership         is admissible at the punishment phase
of a trial as to relevant Character evidence,4 TEX.R.CRIM.EVID.401 /In Pondext-
er     the court           acknowledged            that    testimony     as to gang membership and as to
the     criminal           activities of            the gang may have been prejudicial , Citing       to
the opinion           of     Anderson.v.State,             901      .S.W.2d AT ,9#6 ( Tex.Crim.App 1995)
There         Judge        Clinton        ,wrote      in Concurring opi^nAoraithat gang Membership is
relevant        to     prove        petitioner        character,       However   Article 37.07 § 3(a) in
as much as it incorporates Rule 405(b) of the Texas Rules of Criminal Evidence,
he     said     gang       membership         or affiliation is ,[N]ot an .iai:dmissibl[e] method of
proving character per se, he said it might be admissible for some other legit
imate purpose, Rule 405 of the Texas R.Evid, The permissible method of charac
ter evidence would be reputation or opinion testimony under/Rule 405 Tex.R.
Crim.Evid          Citing      Gigliobianco.v.State,210 .S.W.3d.637,641-642 ( Tex.Crim.App
2006 )
There        the     court     of        criminal     appeals       stated that when under taking a Rule
401 or 403 analysis, it must balance among other things the inherent probative
force of the evidence along with the proponents need for that evidence against
the      tendency          of the evidence to confuse                 or distract the jury from the main
issue        or any tendency of the evidence to be given undue'.'i~ weight by the jury
citing        Beasley.v.State 902.S.W.2d 452                        456 (Tex.Crim.App 1995 ) , There the
court of criminal appeals held that                         that such evidence of gang        membership
admissible           at     the the punishment                stage to show the accused    character ,so
that      the jury can determine the appropriate punishment ( RR5, 233) ,Here
     FOOTNOTE

     4, Texas Rule Crim-Evid 401, Evidence of ther crima wrongs or acts is No[t] admissible to prove
        character of a person in order to show that he acted in conormity there with Evans 876 S.W.
        2d 459,464(Tex.App.Texarkanna 1994 no pat )




                                                              -9-
no     Rule     401/403 or 405 objection was made/petitioner would argue                   that while
this     honorable           court     has in the past pursuant to Rule 33.1(a) of Tex.R.Evid
Refuse        to    review claims raised on appeal for the first time without a timely
of proper specific objection on the issue or point , Citinq                        Rhoades.v.State
934..SW. 2d .113,121,127 ( Tex. Crim.App 1986 )                        an exception     should    apply
here     the       record is clear his trial objection was apparent to the trial court
and     the     state        prosecution        ( RR5 88-90 )      the record also demomstrates that
after trial court had overruled the objection to the :Veracity" of the informat
ion,     and       objection         was    made on the ground of hearsay      once the state sought
to     publish        the     information        to   the    jury ,the trial court was then asks by
defense counsel i. .if it would review ( in Camera ) to                   see what    if ,any hearsay
was contained


Petitioner          would argue that the trial court fail to determine the applicabili
ty of the protitfered justification for the admission of the hearsay information
and     if     additionally'.              requested perform       the requisite relevancy balancing
test     by        comparing     the probative value of the the hearsay against its danger
for unfair prejudice, at anY" rate the objection at trial did not waive the iss
ue     or. complaint about the admissibility of the evidence                    Citing Webber.v.State
29     S.W.     3d     at     226,232        ( Tex.App.Houst [14th Dist] 2000:) therefore the 8th
court     of       appeals      flawed in its opinion and decision not to review the issue
when it was properly before the court


Petitioner           next will demomstrate the trial court admission of the gang member
information was .i an abuse                  of discretion     which deprived him of a fair impart
ial trial,

                                                 STANDARD OF REVIEW


     When the appellate court review a trial courts ruling on the admissibility
of     evidence,        it     must        untilize   an    abuse of discretion standard , And will
up     hold        the trial courts ruling ,if it is within the zone of reasonable dis
agreement, Maranda.v.State,253.S.W.3d.762,769.(Tex.App                       Amarillo    2007    no pet)
in addition           the    reviewing court must review the trial courts ruling in light
of what was before the trial court at the time of its ruling ,Hayos.v.State 982
S.W.. 2d at 419,422 ( Tex.Crim.App.1996 )
     Footnote
 5, Although petitioner may give up the rights .. .He is never daemad to have done so ,in fact un
       less he says so plainly freely and intelligently, .and the trial court has an independent duty
       to inplemant the waiver Sanchez,120 SW 2d 359,366 ( Tex.Crim.App 2003 )




                                                            -10-
A party      who attacks the trial courts ruling                       as an abuse of discretion labors
under a heavy burden, The test for abuse of discretion is not                                  whether   the
opinionftsfthe reviewing Court, the facts present an appropriate case for trial
courts       actions.-Rather ...it is a question of whether the court acted without
reference          to     any guiding rules and principles, ..Stated another way the test
is     whether          the     act    was arbitrary ..or..unreasonable, ,The proporent of the
evidence          must    persuade            the    trial     court that the evidence has relevance .a
part     from       character          conformity that is,it tends to establish some elemental
fact,such          as     intent,        is     tendes to establish some evidenceiary fact,such as
motive,opportunity                "or"     preparative          leading   inferentially    to   an accident
ciiting , Montgomery..v.State, 810.S.W..2d.372,387,388..(Tex.Crim.App.l990 )

As     Mention          through ,Multiple Sources                the prosecutor where able to introduce
into    evidences             states Exhibit's 37, 38,and 39              all of which included inform
ation concerning petitioner gang affiliation                           Officer   Duran,   Offier Pineina,
and Detective             Sanchez,, all confirmed that petitioner was identified as a gang
member,       ,     The       state      first       called officer Duran a detention officer at the

El    Paso     County          jail,     he testified that he processed petitioner for Booking
the    state       question           officer        Duran, about the booking documentation in which
he pointed to a statement that "Remarked "Barri© Azteca"which officer Duran
testified          usually       meant         it    was     confirmed gang membership (RR5,93) Defense
counsel       on        Cross    examination           of     officer Duran was able to get Mr Duran to

admit petitioner hadn't told him he was a gang member ,and that according
to him petitioner didn't fill in the space on the the booking Documentation
( RR5, 96 )

In addition to officer Duran testimony ,the                            state   also   called    officer Pual
Pireira, through him the state was able to offer up Exhibit 38, Officer pineira
a deputy for the Security Threat Group intelligence Coordinator,(RR 5,98,99)
he     testified          that     his        tast    was     to gather compiling information on anyone
booked       into        the     jail,        that were suspected of having been involved in gang,
he explained              why     it was necessary to obtain such information about a person
gang membership he also explained there pointing system,and how it was used
to identify someone as a gang member,he said when they identify a person
they interview him,ask him                           ,if he's a gang member check this affiliations
and whether              he     was arrested           with a gang member by using the point system,

      FOOTNOTE
      6,Therefore petitioner arguo,that the court of appeals should have assinged error ,although no
        specific objection to the contents of the information in the items as a matter of its Judic
        ial power Rezac.v.State, 782 S.W. 2d at 869,870 ( Tex.Criiri.Arp 1990 )because the record can be


                                                                -11-
officer           pineira             also        said        that       the    point sheet reflected that petitioner
was     affiliated                   with        the        "Barrio       Azteca"     gang /Because he had accumulated
10     points              /5    points           for        self admission/3 points for being identified by a
confirmed              gang          member,           and        2 points for being:; identified as a gang member
by unknown informant ( RR 5, 102,103,104 )

Through           Mr        Pineira             the     state        was also allowed to admit Exhibit #39, which
was     a        document showing petitoner self admission into the "Barrio Azteca"gang
in     his        update entry                   on September 10,20110 ,he testified that petitioner had
told        officer             O,Gonzalez              that        he    was     a gang member,but refuse to sign the
form,        that           such          refusal           was     regular,       ( RR5, 105,106 )    However on Cross
examation              by       defense           counsel, Mr Pineira agreed that petitioner                hadn't been
confirmed              by       law enforcement agency , wasn't related to a gang member,wasn't
arrested           with          a gang member ,didn't possess any tattoo or other gang paragh-
ernalia,didn't                   associate              with        confirmed        "or" other suspected gang members
and     didn't              commit          illegal acts "or" activities that violate jail rules with
other suspected gang member that had been comfirmed ( RR 5, 110,111 )

The     record              reflects             the        state    also       called as a witness at the punishment
Detective                  Andres          Sanchez,           who    also       testified that he was assigned to the
gang investigation unit, he testified •.; unit investigated gang related crimes,
such        as     'Assualts,'Burglaries'                            Robberies      and 'Homicides, Detective Sanchez
testified              that          he     identified             different        gangs   within the city ( RR 5, 147
after        being offered as a gang expert Detective Sanchez, talked a little about
how     the        "        Barrio          Azteca"           gang       was a known prison gang that begain around
1987, and continued to thrive once its member came out of prison, he testified
that        the        gangs         primary purpose is illegal criminal activity such as "Murder
"Aggravated                Assault              "Kidnappings"Robberies"drug trafficking"Money laundering
"extortion and "white collar offenses                                          ( RR5, 149,150 )

Detective              Sanchez             further          testified          he called the county jail two or three
times       a      day          to        get     or to give information about gang members who had been
arrested               (    RR       5,         153     )    he also admitted he some times work with officer
pineira           on        a regular basis he was asked if he had seen anything to indicate


 clearly established that at trial petitioner vas making an objection to the relevant of the info
 and claim en appeal that the trial court Abused its discretion in allowing the state to improper
 introduce to the jury such evidences ,because a due process error is alleged the appeals court
 should have review.this issue ,rather then state t^t.rpt±iing^was maser^.py a failure to mak
 3 specific . objection under Texas Rule of Criminal Evidence 4017402 or4C4 (b)




                                                                           -12-
that        /petitioner          claims        of being a Barrio azteca gang member he replied"No"
(     RR     5/        156,157    ) He testified further that he reviewed petitioners prison
records and that the assault                        he had been involved in in prison we're consist
ent with being a Barrclo azteca gang member


     UtJder Article 37.07 § 3(a) ,evidence may be offered by the state and defend;-
ant     as to any matter the trial court deems relevant to sentencing?, /including
but     not        limited       to     the    prior criminal record of the accussed, his general
reputation,             his     character, and opinion regarding his character the circumst
ances        of        the    offense     for       which    he is being tried, and any other evidence
of an extraneous crime or bad act,                          Citing     Roethel.v.State,80 S.W.3d. 276,278
(     Tex.        CApp. Austin 20000 no pet ) , Rule 403 Requires exclusion of evidence
only        when        there    exist     a    clear       dispartity between the degree of prejudice
of the offered evidence and its probative valve, the question s of admissibili
ty     of     evidence          under     TEX,R ,Evid 402 through 404 are assigned to the trial
court        and       are     reviewable       on    appeal        only for abuse of discretion , citing
Coffin-.iv i5State           885 S..W. 2d 140.149 (Tex.CrimApp 1994 ) ,Thus when determining
whether           evidence       is admissible under Rule 403, the reviewing court must con
sider no[t] just only whether the evidence is more prejudicial than probative
it     must also consider whether the probative valve is substantially outweighed
                                                             •7

by the danger of unfair prejudice ,Id

Petitioner             would     argue     here      that the improper admission of states exhibits
37,     38,and          39    allowed the jury to give undue weight to the hearsay evidence
regarding his gang membership which was detrimental to him,                             Citing Lopez.v.
State 200 S.W.-3d at 246,245,255 ( Tex.App Houst [ 14th Dist ] 2006 pet Ref'd)
The houston              court     there       concluded "..^hat" it was an abuse of discretion by
the     trial          courts admitting duble hearsay," the court held its nextstep would
require           it    to    evaluate        the    error        for harm, Citing Tex,R,App,Proc 44.2(b)

    FOOTNOTE

    7, Zillender.v.State,557 S.W, 2d 515,517 ( Tex.Crim.App. 1977 ) where the correct grcud of excus-
       icn [i]s obvious to the judge and oppposing counsels no waiver results from a general or
      imprecise objection
    8, Couret.v.State, 792 S.W. 2d at 107 ( Tex. Crim-App 1990 )




                                                             -13-
a violation of evidentiary rules that results in erroneous admission of eviden
ce    is    considered Non-Constitutionan error and are subject to a harm analysis
under Tex.R.App P 44.2(b)                      an error is considered harmless if the court deter-
                                                                                  9
mine it did not effect the accuse substantial rights ,ones substamtial rights
are     violated if the error had a substaintial and injurious effect or influnce
in    the     jurys determining                  of     its verdict, ,       as such petitioner would argue
that       the     punishment            stage    of    his    trial should have been more focus on the
accusation made by the state in their pleading, Citing                                Garcean.v.Woodford/276
F.2d.       769     (    2001        )    he should no[t] be assessed punishment for              collateral
crimes      or      for       being a criminal generally, he is entitled tobe punished upon
those      accusation           in       which he      was    found guilty..here the states emphasized
and encuraged juror to punish him additionally for collateral crimes or because
he was a member of the Barrio Azteca gang , a gang in which the expart testif
ied     its       member where known for "Assaults"Robberies,"Kidnapping "Drug traff
icking, "Money laundering "extortion and other white collar offenses ( RR5,149
150 ) Citing Kemp.vState 846                       S.W.       2d 289,307         ( Tex.Crim,App 1992 ) also
Citing Klueppel.v.State. Supre at 505                         S.W.       2d.at 552,574 ( Tex.Crim.App 1974)

Petitioner          therefore . argues that the states argument at the punishment phase
more or less asks juror to speculate about other victims,asking them to consid
er    evidence          not     in       the    record,asking them to further speculate whether he
was involved            in     Lthese      activity to which the expert               witness testified it's
members       where       known          for     by    attempting to show unadjudicate criminal acts
in which petitioner had not been tried for                               only to get additional punishment
for     him       being       a member of a gang , with out any particutor referance to any
offenses          contected          to petitioner           or    his    gang    ,Thus inviting the jury to
assess      additional          punishment             for anremote collateral crime ','went beyond the
bounds        of    merely       asking          juror in assessing there punishmentto.consider the
facts and circumstance immedately surrounding the charged • offense ,Citing
Lamas.v.State,707 S.W. 2d at 566 ( Tex.Crim.App 1986 ) Therefore the evidence

     FOOTNOTE
     9,In making its determination the reviewing courts should consider the record as a whole,inc-
        Cluding any testimony or physical evidence admitted for the jurys consideration,the nature
        of the evidence supporting the verdict, the charater of the alleged error,and how it might
        be considered in connection with other evidence in the case,




                                                                  -i#
surrounding     petitioner        gang    membership should      have been excluded ,because
1    ) it    was not Relevant, 2 ) it was impermissible character evidence,3) the
evidence tendency to prejudice the jury substabtially outweighed its probative
value, 4) the evidence was not offered to either prove motive or intent wasn't
admissible to rebut a defense theory               ,Therefore this Court should Reverse and
Remand for cause ,and a New punishment phase Citing Garcia.v.State201 S.W. 3d
695 ( Tex.Crim.App 2006 )

                                                PRAYER



     Wherefore prenriteaConsidered, Petitioner for Discretionary review and reasons
stated     above,the     judgment     and holding of the 8th Court of Appeal            and that
of the      120th,     District     Court      be set aside and a New Punishment hearing be
granted petitioner in the interest of Justice,



                                                                    Respectfully       Submitted      -

                                                                     TDCJ-ID NO 01828058
                                                                     McConnell Unit
                                                                     3001 S,Emily DR
                                                                     Beeville Texas 78102
                                                                     4   /   co /    2015




                                    CERTIFICATE OF SERVICE


    I,   Fernando     Magalde      hereby      certify   that a true and correct copy of the
above     foregoing    petitioner        for   Discretionary Review has been placed in the
U.S Postage      Service        Box Addressed to the Court of Criminal Appeal               P.O BOX
12308 Capital Station             Austin ,Texas 78711 on this day-»^-Lanc3 date -^2.of
2015


                                                                    Respectfully      Submitted

                                                                    ((Mr, Fernando          Magalde
                                                                     TDCJ-ID NO 01828058
                                                                     McConnell Unit
                                                                     3001 S,Emily DR
                                                                     Beeville Texas 78102

                                                                     4   / (O   / 2015




                                                    -15-
                                   Case:Nbv
                    (Tjhe Clerk ofthe convicting court will fill this line in.)


                m the court o:f/crimin^l:.appeals?of TEXAS- •

                 APPLICATION FOR A WRIT OF HABEAS CORPUS
               SEEKING RELIEF FROM FINAL FELONY CONVICTION
             UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07


           Fernando Magalde
NAME:               ,          .

DATE OF BIRTH:


PLACE OF CONFINEMENT:. McConnell Unit

TDCJ-CID NUMBER:            01828058 .        ;      SID'NIJMBER: -:-             ,

(I):   This application concerns (check all that apply):

       P    a cQhvictiph:                     •      parole*

       P    a sentence,                       P.     •mahdatdry^upejr^isibh' i

       P    time credit                       (3     out-of-time appeal or petition for
                                                     discretionary review


(2)    What district court entered the judgment ofthe conviction youi'want relief from?
       (Include the court number and county.)

       12th District El Paso County,Texas



(3)    What was the case number in the frialcourt?

       20110D05035



(4)    What was the name of the trial j udge?


       Maria-Salas Mendoza




Effective: January 1,2014



                                                                                      ;Rev. 01/14/14
(5)     Were you represented by counsel? Ify'esV-pr^vide.the.:;att6Fne.y/is;ha.m'ei

       Robert Riley & Jaime Gandara




(6)     What was the date that the judgment was entered?

       January 25, 2012




(7)     Fori what offense were you convicted and what was the senterice?

       Violation of A Protective Order forty years


(8)     Ifyou were sentenced on more than one count of an? indictment in the same court at
        the same time, what counts were you convicted of and what was the sentence in each
        count?




(?)     What was the plea you entered? (Check/one.)

             D guilty-open plea              P guilty-plea bargain
             ED not guilty                   P nolo conterutere/ria* contest

        If yoii entered different pleas to counts in a multi-count indictment, pleaseexplain:
                                           N/A




(10)    What kind of trial did you have?

            • no jury                        13 jury for guilt and punishment
                                             D jury for guilt; judge for punishment




                                                                                      Rev. 01/14/14
(11)   Did you testify at trial? If yesj at what phase of the trial did you testify?

                                           N/A



(12)   Did you appeal from the judgmehtof cohvietion?

       S yes                                P. no


       If you did appeal, answer the following questions:

       (A): 'What-court: of'appeals did yoii appeal to?    8th Court of Appeals

       (B) What was the case number?          08-12-00065-CR                       __       ;

       ((E)- Were-you representecfby wunsel onappeal^ If yes, provide the attorney's
            name:

             M,Clara Hernandez & Penney Lee Andersen


       :(D) What was the-decision and the date of the declsiou? Affirmed March 28,2014

(13)   Did you file a petition for discretionary review in the Court ofCritMinal Appeals?

       E3 yes                               P' no

       Ifyoii did file a petition for discretionary reviewy answerthe following questions:

       (A) What^was the case number?          N//A         -; .....,;._-.,..• .•        ;   -
       (B) What was the decision and the date of the decision?                              i


(14)   Haveyou previously filed ah application for a writ of habeas: corpus under Article
       11.07 of the Texas Code ofCriminal Procedurechallenging this conviction'!

       0 :yes                               P no.

       If you answered yes, answer the following questions:

       (A) What was theCourt ofCriminal Appeals' writ nUmbert m 82-561-01




                                                                                                Rev. 01/14/14
       (B) What wasi the decision and thfe date ofthe decision? Granted January 2,2015
       (C) Please identify the reason that the current claims were not presented and could
              hot have been presented on your previous application;

               The original date to file the PDR was April 27,2014 ,But a letter

               to the El Paso Piblic defender office was not transfered to the

               court of appeals ,due to a clerical error which caused the time

              period to expire       after a motion for out-of-time PDR was denied
               on June 16,2014,A Writ of Habeas corpus was filed to the court of

              criminal appeal who granted petitioner a chance to file this out-
              of time PDR     (WR PD 115-15 ) now before this Honorable Court


(15)   Doyou currently•'hay&ajiy petition or appeal pending in any other state or federal
       court?


       P ;yes                                g] no

       If you answered yes, please provide the name of the court and the case number:

                                             N/A



(16)   Ifyou are presenting a claim for time credit, have you exhausted your
       administrative remedies by presenting your claim to the time credit resolution
       system of the Texas Department of Criminal Justice? (This requirement applies to
       any final felony conviction, including state jail felonies)

       •yes                                 D no

       If you answered yes, answer the following questions:

       (A): What date did you present the claim?       ,        n/a    . • ..           .   _.

       (B) Did you receive a decision and, if yes, what was the date of the decision?

                                                                 N/A



       If you answered no, please explain why you, have riot submitted your claim:




                                                                                Rev, 01714/14
(17)   Beginning on page 6, state concisely every legal ground for your claim that you are
       being unlawfully restrained, and then briefly summarize the facts supporting each
       ground. You must present each ground on the form application and a brief
       summary of the facts. Ifyourgrounds and briefsummary ofthefacts have not been
       presented on theform application, the. Court willnot consideryourgrounds.
       If you have more than four grounds, use pages 14 and 15 of the form, which you
       may copy as many times as needed to give you a separate page for each ground, with
       each ground numbered in sequence. The recitation of the facts supporting each
       ground must be no longer than the two pages provided for the ground in the form.

       You may include with the form a memorandum of law if you want to present legal
       authorities, but the Court will not consider grounds for relief set out in a
       memorandum of law that were not raised on the form. The citations and argument
       must be in a memorandum that complies with Texas Rule of Appellate Procedure 73
       and does not exceed 15,000 words if computer-generated or 50 pages if not. If you
       are challenging the validity of your conviction, please include a summary of the facts
       pertaining to your offense arid trial in your memorandum.




                                                                                  Rev. 01/14/14
      GROUND ONE*- T^e tr"ial court abused its discretion ,allowing prosecutor
                               to introduce at the punishment phase evidence of his purpose
                               gang membership ,Thus deprived him of a fair trial




     FACTS SUPPORTING GROUND ONE:. The                             8th     Court    of appeals was wrong not
consider          petitioner          claim     ,    ,at the punishment phase the            objection to the
veracity          of the        information "was sufficient to properly preserve the issue
for appellate review, , when                        the      prosecution      was    ready   to offer Exhibit
37,which          contained booking information"",not relevant to the issue                        petitioner
timely objected                (RR5,80-83-90           ) over his objection the trial court allowed
the     prosecution            to     introduce        the    documents      into evidence ,when it wasn't
to publish              the    information          petitioner further objected to it being hearsay
the     court        was      asks     ;.if    it would review the information ( in Carma ) after
a short bench conference ,the trial judge overruled both objection to veracity
and     hearsay            and allowed the information to be Heard"by the jury , The state
was     also       permitted          to    improperly        introduce     other forms Exhibits 38,39 to

the     jury       at      the punishment phase which also contained unrelible information
concerning           him      being     a     member      of the Barrio Azteca gang ;after detention
officer        MR :Duran,            testified       that     he" was the person that booked petitioner
into        the    county       jail       ./and testified that another officer ?.'i-.:0,Gonzalez told

him petitioner                Magalde       told     him he was a gang member (RR5,110-111) officer
Pineira        also at          the punishment stage testified that                   petitioner was a gang
member        ,the      state       also called        MR Sanchez, whom was deemed an expert by the
trial court(RR5,149,150 ) and testified he                           knew     the    "Barrio Azteca"     gang
to     be     involved         in     illegal       activity     such as "Murder"Kidnapping"Aggravated
Assaults"Robberies"and                  Drug       trafficking     etc , On appeal petitioner asserted

a     claim       of abuse          of discretion            on part of the trial court , for allowing
the     prosecution           over     his      objection to introduce such prejudicial evidences
the     8th court of appeal was wrong in not]Jconsidering petitioners due process
claim                                                  See Memorandum pages 1-15




                                                                                                 Rev. 01/14/14
Rev. 01/14/14
      WHEREFORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT
        RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDING.

                                          VERIFICATION

                This application.must be verified or it will be dismissed for npn-complianee. For
V   erification purposes, an applicant is a person filing the application on his or herown behalf. A
petitioner is a person filing the application on behalfofan applicant, for example, an applicant's
attorney. An inmate is a person who is in custody.

               The inmate applicant must sign either the "Oath Before a Notary Public" before a
notary public orthe "Inmate's Declaration" without a notary public. Ifthe inmate isrepresented
by a licensed attorney, the attorney may sign the "Oath Before a Notary Public" as petitioner and
then complete "Petitioner's ^formation." A non-inmate applicant.must sign the "Oath Before a
Notary Public" before a notary public unless he is represented by a licensed attorney, inwhich
casethe attorney may sign the verification as petitioner.

               Anon-inmate non-attorney petitioner must sign the "Oath Before a Notary Public"
before anotary public and must also complete "Petitioner's Information." An inmate petitioner
must sign either the "Oath Before a Notary Public" before a notary public or the "Inmate's
Declaration" without a notary public and must also complete the appropriate "Petitioner's
Information."


               OATH BEFORE A NOTARY PllBLIC

              STATE OF TEXAS

              -COUNTY OF"                  .

                                                       _, being duly swt>rn,:under oath:says:; 'Tarn
the applicant /petitioner (circle one) in this action and know the contents of the above
application for awrit<5f habeas corpus and, according to my belief, thefaets stated in the
application are true.''



                                                      Signature of Applicant •/• Petitioner (circle one)

SUBSCRIBED AND SWORN TO BEFORE ME THIS                         __DAY OF                    ,20


                                                               Signature of Notary Public




                                                 16




                                                                                         Rev. 01/14/14
       PETITIONER'S INFORMATION

       Petitioner's printed name:_

       State barnumber, ;ifapplicable:

       Address:




       Telephone^

       Fax:



       INMATE'S. DECLARATION



                                                _, am theapplieaht /petitioher (circle one) and

being presently incinerated in                                            , declare under penalty of

perjury that, accordirig to my belief^ the facts stated inmeabove application are true and correct.


                                                       Signed on                            ,M



                                                       Signature of Applicant / Petitioner (circle one)




                                                 1-7




                                                                                         Rev. 01/14/14
PETITIONER'S INFORMATION:

Petitioner'sprinted name::   -

Address:      -   -- -




Telephone:

Fax: *




                                       Signed oh              ,. 20_




                                                   Signature ofPetitioner




                                 18:




                                                           Rev;M/l4/14
                                            COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                              EL PASO, TEXAS




 FERNANDO MAGALDE,                                                          No. 08-12-00065-CR


                            Appellant,                                           Appeal from
                                                         §
 v.                                                                          120th District Court
                                                         §
 THE STATE OF TEXAS,                                                     of El Paso County, Texas
                                                         §
                            Appellee.                                       (TC#2011D05035)
                                                         §

                                                 OPINION


          Fernando Magalde appeals his punishment verdict. For the reasons that follow, we

affirm.


                                           FACTUAL SUMMARY


          In cause number 20110D05035, Appellant was charged by indictment for the offense of

violation of a protective order.1 The indictment also included an allegation that Appellant had a
prior felony conviction for driving while intoxicated. In addition, the State subsequently filed a

Notice of Enhancement and Habitualization, alleging three prior felony convictions. Appellant


1 This is a companion case. In trial court cause number 20100D06141 Appellant was charged in a three-count
indictment with robbery (Count I), aggravated kidnapping (Count II), and unlawful use of a motor
vehicle (Count III). Atthe request of Appellant and the State, the trial court consolidated the two cases for a single
trial, In cause number 20100D06141, the jury found Appellant not guilty of robbery and unlawful use of a motor
vehicle as alleged in Counts I and III. The jury also found Appellant notguilty of aggravated kidnapping as alleged
in Count II, but returned a guilty verdict on the lesser-included offense of unlawful restraint. In a separate appeal
(No. 08-12-00064-CR), Appellant appeals his conviction.
pled "not true" to violation of a protective order. During punishment, he also pled "not true" to

the allegations contained in the enhancement/habitualization paragraphs. At the conclusion of

the guilt/innocence phase, a jury found Appellant guilty as charged. The trial then proceeded to

the punishment stage.

                                    Gang Related Punishment Evidence

   Testimony of Officer Duran and State's Exhibit 37 (Booking Document on Appellant)

        Officer Duran, a detention officer with the El Paso County Sheriffs Office (EPSO)

testified that he processed Appellant for booking into county jail. The State offered booking

documents marked as State's Exhibit 37. The following exchange then took place:

        [COUNSEL FOR APPELLANT]: We would only object as to the veracity of the
        information contained in the item, but not to the introduction of the item per se.

        THE COURT: Is this booking information?


        [PROSECUTOR FOR THE STATE]: It is.

        THE COURT: 37 will be admitted.

The prosecutor then sought permission to publish the exhibit and defense counsel objected as to

hearsay information which may be contained within the exhibit and requested the court to review

the exhibit in camera to determine what, if any, hearsay was contained within. At the bench, the

following conversation ensued:

        THE COURT: His own statements?


         [COUNSEL FOR APPELLANT]: No, these aren't his statements.

        THE COURT: Who else do they get it from? They ask him.

         [PROSECUTOR FOR THE STATE]: Yes. And the point here is--

2 On appeal, Appellant's compliant is limited to challenging evidence admitted during the punishment stage. He
does not challenge the sufficiency ofthe evidence to support his conviction. Therefore, we limit our recitation ofthe
factual background to those facts relevantto the instant appeal.
         [COUNSEL FOR APPELLANT]: I suppose I can take him on voir dire, except
         there is a chance that he's going to say hearsay things.

         [PROSECUTOR FOR THE STATE]: Which is exactly what the exception is
         meant to address. He's the one who keeps the records. These aren't objections.

         THE COURT: At or near the time goes to him as custodian. How they get that
         information comes from them.


         [COUNSEL FOR APPELLANT]:              My client is not a Barrio Azteca member,
         though.

         [PROSECUTOR FOR THE STATE]: And that's exactly one of the other facts
         we're going to prove up in just a minute.

         [COUNSEL FOR APPELLANT]:               This guy is going to have contradicting
         information.              >


         THE COURT: Goes to weight.

         [COUNSEL FOR APPELLANT]: Okay.

The prosecutor then questioned Officer Duran about the information in the booking documents.

Pointing to the statement, "Remarks, Barrio Azteca," he asked Officer Duran what the statement

meant.    Office Duran responded, "Usually it's a confirmed gang member, but that's done

through a gang intel officer." He also explained that the gang affiliation notation is included as a

safety measure.

         On cross examination, defense counsel asked the officer whether Appellant told him he

was a gang member. Officer Duran replied that Appellant had not told him and confirmed that

he did not fill in the Barrio Azteca information on the booking documents.

                   Testimony of Deputy Pineira and State's Exhibits 38 and 39

         Deputy Pineira was the Security Threat Group Intelligence Coordinator, otherwise known

as the gang-intelligence coordinator. He was tasked with compiling information oh anyone
booked into jail who was suspected of being a gang member. He also served as custodian of
those records. Detective Pineira explained that it is necessary to obtain information about gang

membership so that gang members can be separated from the general population for safety

reasons. He then explained the 10-point system used to identify someone as a gang member.

       Detective Pineira identified State's Exhibits 38 and 39 as business records of the EPSO.

The prosecutor then offered them into evidence and defense counsel responded, "No objection,

Your Honor." State's Exhibit 38 was the Security Threat Group Member Confirmation Point

Sheet for Appellant, or the 10-point system applied to Appellant. Pineira said the point sheet

reflected that Appellant was affiliated with the Barrio Azteca gang because he had accumulated

10 points: 5 points for self-admission of gang membership; 3 points for being identified by a

confirmed gang member; and 2 points for being identified as a gang member by an unknown

informant. He then identified State's Exhibit 39 as the Security Threat Group Self-Admission

Sheet. The form reflected that Appellant admitted he was a Barrio Azteca gang member to two

detention officers. The form was not signed by Appellant, but Detective Pineira testified that it

was common for gang members to not sign the form.

                                Testimony of Detective Sanchez

       Detective Andres Sanchez worked in the El Paso Police Department Gang Investigation

Unit. The gang unit is tasked with investigating gang related crimes, gathers information on El

Paso gangs, and works to identify their members. Without objection, Detective Sanchez was

allowed to testify as an expert witness. He explained that the gang unit uses the criteria set forth

in Chapter 61 of the Texas Code of Criminal Procedure to identify gang members. He was

familiar with State's Exhibits 37-39 and, based on his review of the documents, Appellant was a

member of the Barrio Azteca gang.
                                Punishment Verdict and Appeal

       A jury found the enhancement/habitualization paragraphs true and assessed punishment

at forty years' imprisonment and a $10,000 fine. The trial court entered judgment in accordance

with the jury's verdict. On appeal, Appellant contends the trial court abused its discretion by

admitting evidence of his gang membership.



                                   EVIDENTIARY ERROR?


       Appellant contends that evidence of gang membership was not relevant, was more

prejudicial than probative, and should have been excluded. The State responds that Appellant

failed to preserve his issue for appellate review. We agree.

       Generally, a party may not complain on appeal about the trial court's admission or

exclusion of evidence unless that party made a timely, specific objection, request or motion and

pursued such to an adverse ruling. See TEX.R.APP.P. 33.1(a); TEX.R.EVID. 103(a)(1); Layton v.

State, 280 S.W.3d 235, 239 (Tex.Crim.App. 2009); Martinez v. State, 98 S.W.3d 189, 193

(Tex.Crim.App. 2003). Subject to two exceptions, a party must continue to object each time

inadmissible evidence is offered. Martinez, 98 S.W.3d at 193, citing Ethington v. State, 819

S.W.2d 854, 858 (Tex.Crim.App. 1991). These two exceptions require that counsel either: (1)

obtain a running objection, or (2) request a hearing outside the presence of the jury. Martinez, 98

S.W.3d at 193, citing Ethington, 819 S.W.2d at 858.

       At the punishment hearing, the State introduced evidence of Appellant's gang

membership through multiple sources. State's Exhibits 37, 38, and 39 all include documentation

of Appellant's gang affiliation. Officer Duran, Officer Pineira, and Detective Sanchez all

confirmed that Appellant was identified as a gang member. Appellant's only objection to the


                                                -5
gang related evidence occurred when the State offered Exhibit 37 into evidence.        But the

objection was only to, "the veracity of the information contained in the item, but not to the

introduction of the item per se." At no point did Appellant object based on Rule 403 or the

prejudicial value outweighing the relevance of the evidence. Even if his objection could be

construed as a complaint about either the relevance or prejudicial nature of the evidence,

Appellant failed to object to the same evidence when offered through repeated sources.

Consequently, Appellant failed to preserve this issue for our review. See Tex.R.App.P. 33.1(a);

Tex.R.Evid. 103(a)(1); Brumfieldv. State, 18 S.W.3d 921, 924 (Tex.App.-Beaumont 2000, pet

ref d). We overrule the point sole and affirm the judgment of the trial court.


March 28, 2014
                                      ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)
