Opinion filed September 29, 2017




                                      In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-15-00238-CR
                                  __________

                  STEVEN CEASAR URESTI, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 70th District Court
                              Ector County, Texas
                        Trial Court Cause No. A-39,257


                     MEMORANDUM OPINION
      Steven Ceasar Uresti was indicted for the offense of murder. The jury
acquitted Appellant of murder but convicted him of the lesser included offense of
manslaughter. The jury assessed punishment at confinement for twenty years in the
Institutional Division of the Texas Department of Criminal Justice. In two issues on
appeal, Appellant contends that the trial court erred in admitting a photograph of the
decedent during the guilt/innocence phase and in admitting expert testimony over
his hearsay objection during the punishment phase. We affirm.
                                 Background Facts
      This appeal arises out of a shooting that took place at the Pussycat Lounge in
Odessa. Martin Blea Jr. earlier went to Jaguars with his sister Raquel Torres, his
brother David Michael Torres, and some friends. They left Jaguars around 2:00 a.m.
and went to the Pussycat Lounge. Appellant was also at the lounge with his friends.
      Raquel testified that she went to the restroom and that, on her way back, a
man grabbed her. She told the man to “chill out,” and he punched her in the face,
knocking her to the ground. A fight then broke out inside the lounge, and Raquel
heard four or five gunshots. She saw somebody lying on the floor in the lounge with
blood coming out as she ran outside, but she did not realize who it was. She saw
David outside, and he told her that Blea was dead. She then ran back inside and saw
that it was her younger brother, Blea, lying on the floor. Raquel identified Appellant
as the person who had the gun.
      David testified that Appellant had the gun and shot Blea. Additionally,
Adriana Ramos, Blea’s friend, stated that she saw Appellant shooting a gun in the
lounge. A warrant was obtained for Appellant’s arrest, and he eventually turned
himself in to U.S. Marshals in Midland.
      During Raquel’s testimony, the State introduced a photograph of Blea in the
hospital following the shooting. The photograph showed Blea lying dead on a
hospital bed. Appellant objected to the admission of the photograph under Rule 403,
asserting that the photograph was unfairly prejudicial because of its graphic nature.
See TEX. R. EVID. 403. The trial court overruled the objection and allowed the
photograph to be admitted.




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      During the punishment phase of trial, Sergeant Scottie Smith of the Odessa
Police Department testified that Appellant was a member of the Latin Kings, a street
gang. Smith stated that his opinion was based on what he had been told regarding
Appellant’s documentation as a gang member in Midland, statements from
Appellant’s ex-family members regarding his gang affiliation, and Appellant’s
tattoos. Appellant objected to the portion of Smith’s testimony regarding what he
had been told, arguing that it was based on hearsay. The State responded that, as an
expert, Smith was permitted to rely on hearsay. The trial court overruled Appellant’s
objection.
                                       Analysis
      We review a trial court’s decision to admit or exclude evidence under an abuse
of discretion standard. Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010).
We will uphold the trial court’s decision unless it lies outside the zone of reasonable
disagreement. Salazar v. State, 38 S.W.3d 141, 153–54 (Tex. Crim. App. 2001).
      In his first issue, Appellant contends that the trial court erred in admitting a
photograph of the decedent over his Rule 403 objection. Appellant asserts that the
photograph was introduced to inflame the jury’s passion and that any probative value
was substantially outweighed by the danger of unfair prejudice.
      Under Rule 403, relevant evidence may be excluded if its “probative value is
substantially outweighed by a danger of . . . unfair prejudice.” Rule 403 favors the
admission of relevant evidence and carries a presumption that relevant evidence is
more probative than prejudicial. Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim.
App. 2002); Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1991).
The admissibility of a photograph is within the sound discretion of the trial court.
Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995). A court may
consider many factors in determining whether the probative value of a photograph
is substantially outweighed by the danger of unfair prejudice. Hayes, 85 S.W.3d at
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815. “These factors include: the number of exhibits offered, their gruesomeness,
their detail, their size, whether they are in color or in black and white, whether they
are close-up, and whether the body depicted is clothed or naked.” Id. A trial court
does not err merely because it admits gruesome photographs into evidence. Sonnier,
913 S.W.3d 519; Luna v. State, 264 S.W.3d 821, 829 (Tex. App.—Eastland 2008,
no pet.).
      The State acknowledges that the single photograph at issue is large and in
color. The photo reveals the condition of Blea’s body at the time he was identified
by Raquel. While there is blood in the photo, it is not unduly bloody or gruesome.
The photo shows only the injuries that Blea received and is not more gruesome than
would be expected. See Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App.
2006). Blea is clothed from the waist down, and the photo does not provide a close-
up perspective of his wounds. The photo essentially depicts Blea’s appearance
shortly after he was pronounced dead.
      To the extent Blea’s body appears bloody in the photograph, this condition
was the direct result of Appellant’s actions. “[W]hen the power of the visible
evidence emanates from nothing more than what the defendant has himself done[,]
we cannot hold that the trial court has abused its discretion merely because it
admitted the evidence.” Sonnier, 913 S.W.2d at 519. Based on the foregoing, we
find that the trial court did not abuse its discretion in admitting the photograph over
Appellant’s Rule 403 objection.
      Moreover, any alleged error in the trial court’s admission of the photograph
was harmless. As noted by the State, similar photographs, which depicted Blea
during his autopsy, were admitted without objection during the pathologist’s
testimony. Specifically, State’s Exhibit Nos. 106, 107, and 108 show Blea’s face
and upper torso, including a close-up of the bullet’s entry point on the side of his
face. It is well established that “erroneously admitted evidence ‘will not result in
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reversal when other such evidence was received without objection, either before or
after the complained-of ruling.’” Coble, 330 S.W.3d at 282 (quoting Leday v. State,
993 S.W.2d 713, 718 (Tex. Crim. App. 1998)); see also Estrada v. State, 313 S.W.3d
274, 302 n.29 (Tex. Crim. App. 2010). We overrule Appellant’s first issue.
      In his second issue, Appellant contends that the trial court erred in overruling
his hearsay objection to Sergeant Smith’s testimony regarding what others had told
him about Appellant being a member of the Latin Kings. Hearsay is a statement,
other than one made by the declarant while testifying at trial, that is offered to prove
the truth of the matter asserted. TEX. R. EVID. 801(d); Willover v. State, 70 S.W.3d
841, 845 (Tex. Crim. App. 2002).
      The State relies on Rule 703 of the Texas Rules of Evidence to assert that
Sergeant Smith was permitted to base his opinion on the information he had been
told even if it constituted inadmissible hearsay because the information was of a type
reasonably relied upon by experts in the field. See TEX. R. EVID. 703. There was no
testimony from Sergeant Smith about this evidence being the type relied upon by
gang experts. We note, however, that other courts have determined that hearsay
evidence of this type has been relied upon by gang experts. See Burks v. State,
No. 04-01-00041-CR, 2002 WL 1758292, at *5–6 (Tex. App.—San Antonio
July 31, 2002, no pet.) (not designated for publication) (permitting drug enforcement
agent to testify about defendant’s gang affiliation based on information received
from his investigation and from “an informant, some prison inmates, and other police
officers”).
      Even if we assume that the trial court erred in overruling Appellant’s
objection, the error was harmless. The violation of an evidentiary rule that results
in the erroneous admission of evidence constitutes nonconstitutional error. See
TEX. R. APP. P. 44.2(b); Geuder v. State, 142 S.W.3d 372, 376 (Tex. App.—Houston
[14th Dist.] 2004, pet. ref’d). As nonconstitutional error, we must review the
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erroneous admission under Rule 44.2(b). See Campos v. State, 317 S.W.3d 768, 779
(Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (the erroneous admission of a
hearsay statement constitutes nonconstitutional error). When an appellate court
applies Rule 44.2(b), it must disregard a nonconstitutional error unless the error
affects the appellant’s substantial rights. Barshaw v. State, 342 S.W.3d 91, 93 (Tex.
Crim. App. 2011). An appellate court should not overturn a criminal conviction for
nonconstitutional error “if the appellate court, after examining the record as a whole,
has fair assurance that the error did not influence the jury, or influenced the jury only
slightly.” Id. (quoting Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001)).
      Sergeant Smith testified that he based his opinion on a number of sources. In
addition to the information he was told regarding Appellant’s gang affiliation,
Sergeant Smith also relied on photographs of Appellant’s tattoos, photographs of
Appellant with a handkerchief with Latin Kings colors, and photographs of
Appellant making Latin Kings hand signs. This testimony “supplied sound evidence
of [Appellant’s] gang membership.” Garcia v. State, 239 S.W.3d 862, 867 (Tex.
App.—Houston [1st Dist.] 2007, pet. ref’d). Accordingly, we have fair assurance
that any error concerning what Sergeant Smith had been told about Appellant’s gang
affiliation did not influence the jury or only influenced the jury slightly.
      Furthermore, the challenged portion of Sergeant Smith’s testimony was
corroborated by two other witnesses. Officer Matt Sedillo of the Midland Police
Department testified that Appellant was documented as a gang member in the
Midland Police Department’s gang database. Also, the mother of Appellant’s child
testified that Appellant was a member of a gang. Consequently, any alleged error in
the admission of Sergeant Smith’s statement was harmless because the same
evidence was later admitted. We overrule Appellant’s second issue.




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                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


September 29, 2017
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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