Affirmed and Memorandum Opinion filed November 5, 2015.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00403-CR

                 CEDRIC TRAVAUGHN HOPES, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 177th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1342020

                 MEMORANDUM                      OPINION


      Appellant Cedric Travaughn Hopes appeals his sentence of thirty-five years
in prison for aggravated robbery with a deadly weapon, arguing he is entitled to a
new punishment hearing. In his first issue, appellant contends the trial court erred
in admitting expert testimony regarding his gang tattoos. We conclude the trial
court did not abuse its discretion in concluding that the expert witness was
qualified to testify. In his second issue, appellant argues he was denied due
process because the trial court, in assessing punishment, considered irrelevant
evidence of appellant’s purported gang affiliation. We conclude that a court may
consider such evidence at punishment because it can be relevant to demonstrate the
character of a criminal defendant. In this case, we hold the tattoo evidence was
relevant to show appellant’s gang membership.

      In his third issue, appellant asserts that the trial court violated his substantial
rights by considering evidence of an extraneous offense that was not sufficiently
supported by the record.       We conclude that appellant did not object to the
introduction of the evidence and has not shown that he was excused from doing so;
therefore, he has not preserved this complaint for appellate review. We affirm the
judgment of the trial court.

                                    BACKGROUND

      We provide only a brief description of the facts concerning the offense of
which appellant was convicted because appellant’s three issues on appeal relate
solely to the punishment phase of the trial. On February 19, 2011, two individuals
wearing masks robbed an Auto Zone store.             The store manager was held at
gunpoint and instructed to empty the safe. The individuals left the store and got
into a black Impala. A few minutes later, police stopped a black Impala matching
the description of the vehicle used during the robbery. Appellant was inside the
car wearing all-black clothing.     Three other individuals were also in the car,
including a four-year-old child. Inside the car, officers found guns, ski masks,
gloves, and a bag containing money.            Appellant was tried and convicted for
aggravated robbery with a deadly weapon. The trial court sentenced appellant to
thirty-five years’ imprisonment. This appeal followed.




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                                      ANALYSIS

I.    The trial court did not abuse its discretion in admitting Sergeant
      Ponder’s gang-affiliation testimony during the punishment phase.
      In his first issue, appellant claims that the trial court erred in admitting
expert testimony from Sergeant Clint Ponder concerning appellant’s gang tattoos.

      A.     Standard of review and applicable law

      Rule 702 of the Texas Rules of Evidence provides that a witness who is
qualified as an expert by knowledge, skill, experience, training, or education may
testify in the form of an opinion or otherwise if the expert’s scientific, technical, or
other specialized knowledge will help the trier of fact to understand the evidence or
to determine a fact in issue. Tex. R. Evid. 702. Before admitting expert testimony
under Rule 702, the trial court must be satisfied that three conditions are met: (1)
the witness qualifies as an expert by reason of his knowledge, skill, experience,
training, or education; (2) the subject matter of the testimony is an appropriate one
for expert testimony; and (3) admitting the expert testimony will actually assist the
fact-finder in deciding the case. Rodgers v. State, 205 S.W.3d 525, 527 (Tex.
Crim. App. 2006).           “These conditions are commonly referred to as (1)
qualification, (2) reliability, and (3) relevance.” Vela v. State, 209 S.W.3d 128,
131 (Tex. Crim. App. 2006). “The three requirements raise distinct questions and
issues, and an objection based on one of these requirements does not preserve error
as to another.” Shaw v. State, 329 S.W.3d 645, 655 (Tex. App.—Houston [14th
Dist.] 2010, pet. ref’d).

      A trial court has broad discretion in determining whether a witness possesses
sufficient qualifications to assist the jury as an expert on a specific topic in a
particular case because the possible spectrum of qualifying education, skill, or
training is wide. Rodgers, 205 S.W.3d at 527–28. In Rodgers, the Court of

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Criminal Appeals set forth three factors to consider in determining whether a trial
court abused its discretion in ruling on an expert’s qualifications. Id. at 528. The
first factor is whether the field of expertise is complex, as the degree of education,
training, or experience that a witness should have before he can qualify as an
expert is directly related to the complexity of the field about which he proposes to
testify. Id. If the expert evidence is close to the jury’s common understanding, the
witness’s qualifications are less important than when the evidence is well outside
the jury’s own experience.     Id. For example, DNA profiling is scientifically
complex, while latent-print comparison is not. Id.

      The second factor is the conclusiveness of the expert’s opinion. Id. The
more conclusive the opinion, the more important the expert’s degree of expertise.
Id. Testimony that a given profile occurred one time in 2.578 sextillion—a number
larger than the number of known stars in the universe—requires a much higher
degree of scientific expertise than testimony that the defendant’s tennis shoe could
have made the bloody shoe print found on a piece of paper in the victim’s
apartment. Id.

      The third factor is the centrality of the area of expertise to the resolution of
the lawsuit.     Id.   The importance of the expert’s qualifications is directly
proportional to the degree to which the area of expertise is dispositive of the
disputed issues. Id. We must review the trial court’s ruling in light of what was
before that court at the time the ruling was made. Id.

      B.       Preservation of error

      The State argues that appellant’s complaints on appeal regarding the
admission of Sergeant Ponder’s testimony were not preserved for our review
because appellant’s trial counsel, after questioning Sergeant Ponder about his
qualifications, objected only “to the relevance of this witness, and as to whether or
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not under Daubert, that [the witness] can make a conclusion as an expert
concerning [appellant] and any street gang, based upon anything he may have
observed.”1 The State contends that Sergeant Ponder did not testify as to whether
appellant was a gang member but instead gave some background regarding two
gangs, the Crips and Bloods, and the meaning of appellant’s tattoos. See Wilson v.
State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (stating that to preserve error,
appellant’s complaint on appeal must comport with the objection made at trial).

      We find this argument unpersuasive.                  The point of Sergeant Ponder’s
testimony regarding the meaning of appellant’s tattoos was to provide evidence on
the question whether appellant was in fact a gang member. As explained below,
however, we do agree that appellant’s objection did not alert the trial court to some
of the complaints he now raises on appeal regarding the admission of Sergeant
Ponder’s testimony.         Accordingly, those complaints are not preserved for our
review. See Tex. R. App. P. 33.1(a).

      C.        Sergeant Ponder’s qualifications

      Appellant first argues that Sergeant Ponder was not qualified to testify as an
expert on interpretation of gang tattoos. Assuming this challenge to Ponder’s
qualifications was included within the objection appellant made at trial, we hold
that Ponder satisfied the three criteria to be qualified as an expert under Rodgers.
With regard to the first factor, the field of gang membership and the meaning of
appellant’s tattoos are not scientifically complex. Sergeant Ponder testified that
the Crips are a prominent criminal street gang that began in Los Angeles. He
further testified that, over time, individuals in Houston began identifying as
Houston Crips.         Sergeant Ponder stated that the acronym “O.G.” in one of
appellant’s tattoos stands for “original gangster.” He read aloud for the court
      1
          Appellant’s trial counsel obtained a running objection from the trial court.

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another tattoo that said “crip for life.” Another tattoo read “Blood killer,” which
Sergeant Ponder testified was significant because the Crips and Bloods are rival
gangs. Another tattoo read “187,” which Ponder testified was the California Penal
Code section defining murder.2

       Moreover, Sergeant Ponder testified that he had been with the Houston
Police Department for approximately seventeen years and had spent most of his
time in the Fondren Divisional Gang Unit. He testified that he had attended
numerous conferences and classes on gangs and that he had conducted trainings
and taught classes on identifying criminal street gangs. Sergeant Ponder indicated
that in the previous ten years, he had documented over 700 gang members and had
been called to testify as an expert witness approximately ten to fifteen times. He
held membership in the Texas Gang Investigator Association.           We conclude
Sergeant Ponder’s training and experience qualified him to testify as an expert in
this field.

       As to factor two, Sergeant Ponder’s testimony was not conclusive regarding
whether appellant was a member of a gang. Instead, he testified that “I’ll say what
the tattoos mean and . . . it’s open to the interpretation of the Court.” With regard
to factor three, the testimony was not dispositive of the disputed issues. A jury
already had found appellant guilty of aggravated robbery with a deadly weapon.
Sergeant Ponder’s testimony occurred during the punishment phase. His testimony
provided context for appellant’s character, which are not dispositive considerations
in imposing a sentence. All three Rodgers factors therefore demonstrate that the
trial court did not abuse its discretion in ruling that Sergeant Ponder was qualified
to testify as an expert.

       Appellant further argues that Ponder does not qualify as an expert because
       2
           See Cal. Penal Code § 187 (West, Westlaw through 2015).

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he could not name all eight criteria the State uses to identify potential gang
members for inclusion in its gang member database. The record demonstrates that
Ponder named seven of the criteria but could not remember the eighth. Given
Ponder’s experience, detailed above, we do not see why this one fact should
disqualify him from testifying about gang membership.3

       Turning to reliability, appellant argues Sergeant Ponder’s testimony is
unreliable because it is “not grounded ‘in methods and procedures of science’ and
is no more than ‘subjective belief or unsupported speculation.’” Acevedo v. State,
255 S.W.3d 162, 168–69 (Tex. App.—San Antonio 2008, pet. ref’d). According to
appellant, the State failed to show reliability because Sergeant Ponder did not
testify regarding peer review of his methods, their potential for error, or the
statistical standards and techniques used.           We do not consider this argument,
however, because appellant did not preserve it for our review by objecting at trial
that Sergeant Ponder’s testimony was unreliable and securing an adverse ruling.
See Turner v. State, 252 S.W.3d 571, 584 n.5 (Tex. App.—Houston [14th Dist.]
2008, pet. ref’d) (holding objection based on expert’s qualifications did not
preserve reliability challenge). We overrule appellant’s first issue.4

II.    The evidence concerning appellant’s gang membership was relevant
       because it related to appellant’s character.
       In his second issue, appellant argues that he was denied Due Process under
the United States Constitution and Due Course of Law under the Texas
       3
         Appellant also argues that tattoos are not alone sufficient to establish gang membership.
Appellant relies on Ponder’s testimony that an individual could not be put into the State’s gang
database unless the individual met two of the eight criteria. But this testimony relates solely to
the database. In any event, even if appellant were correct, this fact would not disqualify Ponder
from testifying as an expert in the field of gang membership.
       4
         Because we conclude the trial court did not abuse its discretion in admitting Sergeant
Ponder’s testimony, we need not address appellant’s claim that the testimony affected his
substantial rights. See Tex. R. App. 44.2(b).

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Constitution because the trial court considered evidence regarding gang affiliation
in assessing punishment. Appellant contends the court violated these constitutional
provisions because the evidence was irrelevant.

       Appellant has not explained how any consideration the trial court gave this
evidence raises constitutional concerns. Thus, the question is simply whether the
testimony is relevant. In Beasley v. State, 902 S.W.2d 452, 456 (Tex. Crim. App.
1995), the Court of Criminal Appeals stated that “evidence concerning [a criminal
defendant’s] gang membership is relevant [at the punishment phase] because it
relates to his character.” According to Beasley, “it is not necessary to link the
accused to the bad acts or misconduct generally engaged in by gang members, so
long as the [fact-finder] is . . . provided with evidence of the defendant’s gang
membership . . . .” Id. at 457.5

       Appellant argues that Sergeant Ponder’s testimony did not satisfy Beasley
because Ponder did not provide adequate evidence of appellant’s gang
membership. Appellant asserts that testimony regarding tattoos is insufficient to
show gang membership. We disagree. Sergeant Ponder’s testimony that the letters
“O.G.” in one of appellant’s tattoos meant “original gangster,” his explanation that
the numbers “187” in another tattoo represented the California Penal Code section
for murder, his discussion of appellant’s “crip for life” tattoo, and his discussion of
appellant’s “Blood killer” tattoo are relevant evidence of gang membership. We
overrule appellant’s second issue.

III.   Appellant did not preserve his challenge to the extraneous-offense
       evidence introduced in the punishment phase.
       In his third issue, appellant contends that the trial court relied on evidence of

       5
        Beasley also includes other requirements, but because appellant challenges only the
requirement quoted above, we do not discuss the others.

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an extraneous offense when assessing punishment. Appellant argues the trial court
erred in doing so because appellant’s involvement in the offense was not
sufficiently supported by the record. Appellant contends there is no evidence
linking him to the crime.

         During the punishment phase, the State presented evidence of another
robbery that occurred six days before the Auto Zone robbery of which appellant
was found guilty. Claudia Castillo, the assistant manager of a Family Dollar store,
testified that at approximately 8:45 on the evening of February 13, 2011, two
African-American men robbed the store with pistols. Both men were wearing
black shirts. She testified that she could not see the men’s faces because they were
both wearing masks. One of the men instructed her to empty the register into a
bag. Castillo identified the bag used during the Auto Zone robbery, previously
admitted as State’s Exhibit 37, as either the same as or substantially similar to the
one used during the Family Dollar robbery. One assailant then asked Castillo to
open the safe located in the back of the store. She did so and put the money in the
bag. The robbers tied her and her co-worker using electrical cords and then left the
store.

         Officer Martha Medellin of the Houston Police Department also testified
regarding the Family Dollar store robbery. Officer Medellin testified that on the
evening of the robbery, she and her partner were dispatched to investigate a report
of a suspicious vehicle. When the officers reached the area, they found a black
Impala near the Family Dollar store. She wrote down the license plate of the
vehicle because in her two years patrolling the area, she had never seen a car
parked in that location. The license plate matched the license plate of the black
Impala appellant occupied when he was arrested on February 19, 2011, following
the Auto Zone robbery. Officer Medellin testified that she did not see anyone

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inside the vehicle. She kept driving. A few minutes after she observed the parked
car, she received a call about the Family Dollar robbery. When she arrived at the
Family Dollar store, she noticed that the Impala was no longer there.

      A.      Applicable law

      Texas Code of Criminal Procedure Article 37.07, which governs the
punishment phase of trial, permits evidence of extraneous offenses committed by a
defendant to be introduced during the punishment phase to the extent the court
deems the evidence relevant to sentencing. Tex. Code Crim. Proc. Ann. art. 37.07
§ 3(a) (West 2006). If the State offers such evidence, it must prove the extraneous
acts of misconduct beyond a reasonable doubt. Id. The trial court is the authority
on the threshold issue of the admissibility of relevant evidence during the
punishment phase of the trial. Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim.
App. 1996).

      B.      Standard of review

      Although the reasonable-doubt standard required for conviction also applies
at the punishment stage to proof of the defendant’s extraneous acts of misconduct,
we do not review such proof under an evidentiary sufficiency standard. Malpica v.
State, 108 S.W.3d 374, 378 (Tex. App.—Tyler 2003, pet. ref’d). Because the
verdict on punishment in a non-capital criminal case is a general verdict, an
appellate court cannot determine whether the sentencer considered the evidence of
the extraneous offense or whether it affected the sentencer’s determination of
punishment. Thompson v. State, 4 S.W.3d 884, 886 (Tex. App.—Houston [1st
Dist.] 1999, pet. ref’d). Therefore, we treat sufficiency challenges to extraneous-
offense evidence at the punishment stage as challenges to the trial court’s threshold
ruling admitting the evidence, and we employ an abuse-of-discretion standard of
review. Palomo v. State, 352 S.W.3d 87, 94 (Tex. App.—Houston [14th Dist.]
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2011, pet. ref’d).

       C.     Preservation of error

       To preserve error in the admission of extraneous-offense evidence, the
defendant first must object under Rule 404(b) of the Texas Rules of Evidence.
Thompson, 4 S.W.3d at 886-87. The State then must show that the evidence is
relevant, and, at the defendant’s request, the State may be required to articulate the
limited purpose for which the evidence is being offered. Id. If the trial court
determines the evidence is relevant, the defendant must further object and obtain a
ruling under Rule 403 of the Texas Rules of Evidence. Id.

       Appellant did not object to the testimony concerning the Family Dollar store
robbery at the time it was offered.6 He therefore did not preserve the issue for our
review. Tex. R. App. 33.1(a).

       Appellant relies on Smith v. State, 227 S.W.3d 753, 764 (Tex. Crim. App.
2007), a case in which the Court of Criminal Appeals stated: “We think it obvious
that it would violate due process for a trial court to consider evidence of extraneous
misconduct . . . if there was no evidence from any source from which it could be
rationally inferred that the defendant had any criminal responsibility for that
extraneous misconduct.” Appellant claims there was no evidence linking him to
the robbery of the Family Dollar store because he was not identified by Castillo.

       Smith does not support appellant’s position. Smith involved a trial court’s
order of a presentence investigation report (PSI) under section 3(d) of article 37.07
of the Texas Code of Criminal Procedure. See Smith, 227 S.W.3d at 755. Article
42.12, which governs community supervision, defines what a PSI may contain,
including “any other information relating to the defendant or the offense requested
       6
         Appellant did object during the prosecutor’s closing argument, but that objection was
untimely.

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by the judge.” Tex. Code Crim. Proc. Ann. art. 42.12 § 9(a) (West 2006). The
court examined

      the convergence of two statutory provisions: 1) Article 37.07, Section
      3(a)(1), which governs the “evidence” that “may be offered” at the
      punishment phase of a criminal case, whether the sentence assessor is
      judge or jury, and 2) Article 37.07, Section 3(d), which authorizes a
      trial court to “consider” the contents of the PSI as authorized in
      Article 42.12, Section 9(a) in assessing punishment, without apparent
      limitation.

Smith, 227 S.W.3d at 759. The court stated the issue as follows:

      By conditioning the admissibility of extraneous misconduct evidence
      at a punishment hearing upon a showing that the defendant committed
      that misconduct beyond a reasonable doubt, did the Legislature also
      intend to narrow the scope of the “consideration” to which a trial
      judge can put extraneous misconduct evidence that appears in a PSI?
      If he finds that the PSI fails to establish the defendant’s criminal
      responsibility for the extraneous misconduct to that high level of
      confidence, may he still consider it in assessing punishment, or must
      he instead restrict his consideration of the misconduct evidence to the
      question of whether community supervision should be imposed?
Id. at 762. The court held “that Section 3(a)(1) of Article 37.07 does not prohibit a
trial court, as a sentencing entity, from considering extraneous misconduct
evidence in assessing punishment just because the extraneous misconduct has not
been shown to have been committed by the defendant beyond a reasonable doubt,
if that extraneous misconduct is contained in a PSI.” Id. at 763. But the trial court
never admitted the PSI into evidence. See id. at 757 (“The PSI was never formally
introduced into evidence, but it was included in the appellate record.”). The court
concluded the record was ambiguous on whether the trial court did consider the
evidence in the PSI in assessing punishment and remanded to the trial court for
reassessment of punishment. Id. at 764. The statement from Smith cited by
appellant was dicta. Moreover, in Smith, the defendant objected to the introduction

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of the PSI. See id. at 755–56.

       Even if Smith modified the cases holding there is no sufficiency review of
extraneous-offense evidence during the punishment phase, an issue we need not
decide, we conclude this is not the sort of no-evidence case mentioned in Smith.
Just a few minutes after the Auto Zone robbery, appellant was detained in a black
Impala wearing black clothing, and the Impala contained masks, pistols, and a bag
filled with money. The license plate on the car matched the license plate on the
Impala Officer Medellin spotted on the night of the Family Dollar robbery, and as
the trial court noted, even though the witnesses of the Family Dollar robbery did
not identify appellant, the modus operandi was the same: two masked men dressed
in black and armed with pistols forcing the store manager to put money into a
substantially similar bag. This evidence is certainly some circumstantial evidence
from which it could be rationally inferred that appellant was involved in the Family
Dollar robbery. We overrule appellant’s third issue.

                                   CONCLUSION

       Having overruled appellant’s three issues on appeal, we affirm the judgment
of the trial court.




                                      /s/    J. Brett Busby
                                             Justice



Panel consists of Chief Justice Frost and Justices Jamison and Busby.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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