AFFIRM; and Opinion Filed November 3, 2015.




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-01264-CR

                        DEMUNTRA RASHARD GREEN, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                      On Appeal from the 195th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1356459-N

                             MEMORANDUM OPINION
                          Before Justices Evans, Whitehill and Schenck
                                   Opinion by Justice Schenck
       Demuntra Rashard Green appeals his conviction for the murder of Vasile Cartojan,

challenging the legal sufficiency of the evidence and the admission of evidence of his possible

gang affiliation. We affirm his conviction. Because all issues are settled in law, we issue this

memorandum opinion. TEX. R. APP. P. 47.4.

                                         BACKGROUND

       On the evening of May 19, 2013, Vasile Cartojan was shot and killed outside his

townhouse located in northeast Dallas. Prior to the shooting, Cartojan and his girlfriend Kai

Kannapas were relaxing on his patio. While they were on the patio, Kannapas noticed someone

backing Cartojan’s silver BMS out of its carport. She alerted Cartojan to this fact, and he ran out

to the alley. Shortly thereafter, Kannapas heard a pop noise, and then Cartojan cried out to her,

“Call 911; I’ve been shot.” Kannapas retrieved her phone and called 911. At the direction of the
911 operator, Kannapas performed CPR on Cartojan as she awaited emergency responders.

Cartojan did not survive. His cause of death was a gunshot wound that entered his chest and

went into his abdomen, perforating the diaphragm, liver, stomach, and aorta.

          During the course of their investigation, police officers recovered Cartojan’s car and

collected as additional evidence a sandal, a pair of sunglasses, cigarettes, a black bag containing

eight small baggies containing marijuana, and a “brown-looking cigarette.” DNA left on the

items would prove of value in the ensuing investigation.

          The homicide detective assigned to the case distributed flyers at a nearby apartment

complex asking for information related to Cartojan’s death. The apartment complex was the

scene of a significant fire during the early morning hours on the day after Cartojan’s death.

Tabroderick Washington, one of the residents of the apartments, whose apartment was

completely destroyed, agreed to speak with the detective about his encounter with appellant and

others.

          Washington told the detective that during the afternoon of the day of the fire, he took his

dogs to a friend’s apartment in the same complex with the intent of asking her to look after them.

A number of people were at the apartment including appellant, who is known as “Tubs;” Ryan

Norris, known as “Spud;” and Jaquincey Bush, known as “Quincy.” Washington heard everyone

at the apartment talking but did not initially pay attention to what they were saying. He noticed,

however, that Bush “looked like he was sad, kind of scared a little bit,” and like he had been

crying. Washington heard appellant say something along the lines of “that nigga didn’t want to

give me the keys or the car.” Washington saw appellant, Norris, and Bush leave the apartment in

a silver BMW.

          Based on information from Washington and other witnesses, appellant was identified as

one of three suspects in the murder of Cartojan. A warrant issued for his arrest and he was

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charged with capital murder. Appellant’s DNA profile was consistent with the DNA found on

two swabbings of the items collected during the investigation.

          At trial, the State presented testimony from Cartojan’s sister Eugenia Anghel, witnesses

Kannapas and Washington, officers involved in the investigation and the collection of evidence,

a forensic pathologist, and a forensic biologist. Appellant elected not to testify during the guilt-

innocence phase of the trial, and the defense rested at the conclusion of the State’s case.                                             The

jury found appellant guilty of murder.

          Both parties presented evidence during the punishment phase.                                             The State called

Cartojan’s sister and girlfriend to testify about the impact Cartojan’s murder has had on them and

Cartojan’s family. In addition, the State called Detective Barry Nelson to testify about the gang-

related tattoos on appellant’s body. He testified that Four Deuce is a gang from south Dallas—a

Crips gang. He explained that tattoos have great significance in gang cultures at present and

testified regarding his familiarity with gang culture and the significance of certain tattoos. He

viewed pictures of appellant’s tattoos and concluded, based upon his extensive experience with

gangs, that appellant was a member of the “Four Deuce” criminal street gang. Of significance to

Detective Nelson were the following tattoos: a “South Dallas” tattoo on appellant’s face (south

Dallas is the location of the Four Deuce gang); a tattoo of an address in south Dallas where

members of the Four Deuce gang hang out; a “42” tattoo (symbolizing the “Four Deuce” gang);

a “licc squad” tattoo on the side of appellant’s neck; 1 and two Star of David tattoos (a known

symbol of the Crips gang). Detective Nelson described the Four Deuce gang’s criminal activity

as involving every crime in the penal code, including robbery and murder.




     1
       Hitting a lick means to rob someone. Crips use the spelling “licc” rather than “lick” to avoid putting c-k together as it apparently is
understood to mean “Crip Killer.”



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         Appellant’s mother, a family friend, and a friend’s mother testified for the defense.

Appellant’s mother testified that appellant’s “42” tattoo referred to the bus stop in the

neighborhood where he grew up. She also testified that appellant came to her sister’s house on

May 20, 2013, saying “I’m sorry, I didn’t mean to do it,” which she later figured out referred to

this offense. The other witnesses for the defense testified appellant took good care of his family

and was a good student. The jury sentenced appellant to 45 years’ confinement and a $10,000

fine.

                                             DISCUSSION

SUFFICIENCY OF THE EVIDENCE

         In his first issue, appellant challenges the legal sufficiency of the evidence to support his

conviction for murder. More particularly, appellant claims the evidence is insufficient to prove

beyond a reasonable doubt he acted with the requisite culpable mental state to support a murder

conviction.

         STANDARD OF REVIEW

         When conducting a legal-sufficiency review, a court must ask whether “any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 318–19 (1979). In so doing, we assess the evidence “in the

light most favorable to the prosecution.”          Id.   This same standard applies equally to

circumstantial and direct evidence. Burden v. State, 55 S.W.3d 608, 613 (Tex. Crim. App.

2001).

         APPLICABLE LAW

         A person commits the offense of murder if he intentionally or knowingly causes the death

of an individual. TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011). A person acts intentionally

when he has a conscious objective or desire to cause the result of his conduct. Id. § 6.03(a). A

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person acts knowingly when he is aware that his conduct is reasonably certain to cause the result.

Id. § 6.03(b).    Proof of a requisite culpable mental state is almost always proved by

circumstantial evidence. See Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991).

       THE EVIDENCE

       Appellant claims his statements to the investigating detective, which were introduced into

evidence at trial, conclusively establish he did not intentionally or knowingly kill Cartojan. The

statements upon which appellant relies are he reacted to Cartojan hitting him by grabbing the gun

in his waistband when he thought he was falling to the ground, the gun discharged once, and he

did not know if he had shot Cartojan.

       The jury is the exclusive judge of the credibility of the witnesses and the weight to be

given to their testimony. See Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984).

The jury was free to reject all or any part of appellant’s account of the events. See id; Dumas v.

State, 812 S.W.2d 611, 615 (Tex. App.—Dallas 1991, pet. ref'd). Which they apparently did.

       We now look to the remainder of the evidence and the relevant case-law to determine

whether the jury could have found appellant acted intentionally or knowingly in causing

Cartojan’s death. Intent to commit murder may be shown by the use of a deadly weapon per se.

Gamblin v. State, 476 S.W.2d 18, 19-20 (Tex. Crim. App. 1972). Appellant admits to drawing

and firing the pistol. A pistol is a deadly weapon per se. Id. When a deadly weapon is fired at

close range and death results, the law presumes an intent to kill. Stills v. State, 492 S.W.2d 478

(Tex. Crim. App. 1973). The evidence shows Cartojan ran out to the alley after he and Kannapas

discovered someone was trying to steal his car. Kannapas heard a pop shortly thereafter. She

did not hear any arguing or struggle before the gun fired, but she heard Cartojan say, “I’ve been

shot” after she heard the pop. Appellant was the individual who shot Cartojan, and he shot him

at close range. This evidence is sufficient to support a finding appellant acted with the requisite

                                               –5–
culpable mental state to support his conviction of murder. Accordingly, we overrule appellant’s

first issue.

IDENTIFICATION OF APPELLANT AS A GANG MEMBER

           In his second issue, appellant argues the trial court abused its discretion in admitting

evidence of gang membership, affiliation, or association during the punishment phase of trial

because he was not properly identified as a gang member under article 61.02 of the Texas Code

of Criminal Procedure. For the reasons set forth herein, we do not agree with appellant.

           At the outset, we note article 61.02 does not control whether evidence concerning gang

affiliation is admissible. That provision governs the creation of “an intelligence database for the

purpose of investigating or prosecuting the criminal activities of criminal combinations or

criminal street gangs.” TEX. CODE CRIM. PROC. ANN. art. 61.02 (West Supp. 2014); Garcia v.

State, 239 S.W.3d 862, 866 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). Appellant was

not investigated for, tried for, or convicted of a gang-related crime. The restrictions outlined in

article 61.02, including the existence of two identifications of the individual being a criminal

street gang member in cases where there has not been a judgment of participation in a criminal

street gang or a self-admission of gang membership during a judicial proceeding, apply only to

the collection of gang-related information for the database, not to the admissibility of gang-

related information during the punishment phase of a trial. See id. Notwithstanding this fact, the

State satisfied at least two of the identification criteria set forth in article 61.02. 2

           During the punishment phase of trial, the State presented testimony from Detective

Nelson, a member of the U.S. Marshal’s task force and the Dallas Police Department gang unit.

He explained that he had been in the gang unit for seventeen years and that he was the North


     2
        More particularly, the State presented evidence of appellant’s criminal street gang tattoos and association with a known gang member, as
well as documentation of appellant as a member of Four Deuce with the Dallas County Juvenile Department.



                                                                     –6–
Director of the Texas Gang Investigative Association. Detective Nelson testified that appellant

was not a documented gang member with the Dallas Police Department, but he was documented

with the Dallas County Juvenile Department as a member of “Four Deuce.” Detective Nelson

further testified about appellant’s extensive tattoos and their gang-related significance,

specifically a “South Dallas” tattoo on his face and a tattoo of a street address located in south

Dallas where members of the Four Deuce gang hang out, a tattoo stating “Licc squad,” referring

to “a group of men, a group of guys who get together, and their whole purpose is to hit licks,

commit robberies, commit felonies,” two Star of David tattoos, which he knew to be a symbol of

Crip gangs, and a “42” tattoo, which was the “actual name of the gang in South Dallas.”

Detective Nelson also testified that Ryan Norris, a person with whom appellant is associated, is a

documented gang member with the Dallas Police Department. Based on his observations and

experience, Detective Nelson testified that appellant “belong[ed] to the criminal street gang 4

Deuce.” He further testified that the gang had “done everything from murder to kidnapping to

robbery . . . narcotics, they have done it.”

       Detective Nelson’s expert-opinion testimony that certain of appellant’s tattoos had

distinctive meanings and were common in the Four Deuce gang supplied sound evidence of

appellant’s gang membership.       See Garcia, 239 S.W.3d at      867 (gang tattoos alone were

sufficient evidence of gang membership, despite Garcia’s denial of membership); Horton v.

State, No. 14–10–00253–CR, 2001 WL 742654, at *3 (Tex. App.—Houston [14th Dist.] March

3, 2011, pet. dism'd) (Squyres’ expert testimony that certain of appellant’s tattoos were common

to members of the Five Deuce Hoover Crips provided sound evidence of appellant’s gang

membership); Cabrera v. State, No. 05–05–00450–CR, 2006 WL 952410, *2 (Tex. App.—

Dallas Mar. 30, 2006, pet. ref’d) (testimony from police officer that distinctive notches shaved

into defendant’s eyebrows were common among members of certain gangs, testimony from

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defendant’s friend’s mother that defendant talked about getting a teardrop tattoo, which had gang

meaning that tattooed person had killed someone, and testimony that defendant associated with

gang members, was enough to show gang membership). Accordingly, we overrule appellant’s

second issue.

GANG INVOLVEMENT EVIDENCE

       In his third issue, citing rule 404’s restricted use of other crimes and wrongs evidence to

prove character or act in conformance therewith, appellant asserts that the opinion testimony of

Detective Nelson should have been excluded either because it lacked relevance, or any probative

value it had was substantially outweighed by the danger of unfair prejudice. We disagree with

both assertions.

       Appellant’s reliance on rule 404 is misplaced. Article 37.07 of the code of criminal

procedure controls the admission of evidence at the punishment phase and expressly allows

evidence of the defendant’s character and other bad acts, notwithstanding rule 404’s restrictions.

TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1). As a general rule, evidence of a defendant’s

gang affiliation and the violent activities of that gang are relevant and admissible at the

punishment phase to show the defendant’s character. Beasley v. State, 902 S.W.2d 452, 456

(Tex. Crim. App. 1995); Jackson v. State, Nos. 05–13–00579–CR & 05–13–00580-CR, 2014

WL Tex. App. LEXIS 3955171, at *3 (Tex. App.—Dallas Aug. 14, 2014, no pet.) (mem. op.).

The evidence need not link the accused to the bad acts or misconduct generally engaged in by

gang members, so long as the fact finder is (1) provided with evidence of the defendant’s gang

membership, (2) provided with evidence of character and reputation of the gang, (3) not required

to determine if the defendant committed the bad acts or misconduct, and (4) asked only to

consider reputation or character of the accused. See id. at 457. Evidence of the types of

activities the gang is engage in is not restricted to the particular crime for which the defendant is

                                                –8–
found guilty. It is essential for the jury to know the types of activities the gang generally

engages in so that they can determine if the defendant’s gang membership is a positive or

negative aspect of his character, and subsequently his character as a whole. Broadnax v. State,

No. AP–76207, 2011 WL 6225399, at *15 (Tex. Crim. App. Dec. 14, 2011).

         Through Detective Nelson’s testimony, the State established evidence of appellant’s gang

membership, evidence of the activities of the gang generally, and evidence of the character and

reputation of the gang. The State did not ask Detective Nelson for evidence linking the appellant

to specific bad acts or misconduct, nor did the State ask the jury to consider anything beyond the

appellant’s reputation or character in light of his association with the gang. Thus, the State

successfully fulfilled the Beasley requirements for admitting evidence of the appellant’s gang

membership, and we find that Detective Nelson’s testimony was, indeed, relevant. See Beasley,

902 S.W.2d at 456.

         Having determined that evidence of the appellant’s gang membership was relevant, we

are still left to determine whether its probative value outweighed its prejudicial effect. Rule 403

favors the admission of relevant evidence and carries a presumption that relevant evidence will

be more probative than prejudicial.    Williams v. State, 958 S.W.2d 186, 196 (Tex. Crim. App.

1997).    “The term ‘probative value’ refers to the inherent probative force of an item of

evidence—that is, how strongly it serves to make more or less probable the existence of a fact of

consequence to the litigation—coupled with the proponent’s need for that item of evidence.”

Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). “ ‘Unfair prejudice’ refers to a

tendency to suggest decision on an improper basis, commonly, though not necessarily, an

emotional one.” Id. at 880. It is only when a clear disparity exists between the degree of unfair

prejudice of the offered evidence and its probative value that Rule 403 is applicable. Davis v.

State, 313 S.W.3d 317, 331 (Tex. Crim. App. 2010).

                                               –9–
       Evidence of the appellant’s gang membership was obviously unfavorable to the appellant,

but it was not unfairly prejudicial. The State’s gang evidence was narrowly tailored to the

purpose allowed by article 37.07. It consisted of only nineteen pages of testimony of Detective

Nelson and photos of the appellant’s tattoos. In addition to Detective Nelson, the State called

Cartojan’s sister and girlfriend who testified about the devastating effect Cartojan’s murder has

had on them and Cartojan’s family.          The jury sentenced appellant to forty-five years’

confinement when the punishment range permitted a sentence of ninety-nine years or life. Under

these circumstances, the gang evidence was not so unfairly prejudicial that there was a clear

disparity between the degree of the prejudice and its probative value. Accordingly, the trial court

did not abuse its discretion in admitting evidence of appellant’s affiliation with the “Four Deuce”

gang and evidence of the activities of the gang. See Jackson, 2014 WL 3955171, at *4 (“trial

judge did not abuse his discretion in admitting expert testimony on gang evidence and

appellant’s tattoos”); Stewart v. State, 995 S.W.2d 251, 256 (Tex. App.—Houston [14th Dis.]

1999, no pet.) (trial court did not abuse its discretion in admitting lyrics in defendant’s notebook

that were of a violent nature as character and reputation evidence at the punishment stage). We

overrule appellant’s third issue.

                                          CONCLUSION

       Having resolved all of appellant’s issues against him, we affirm the trial court’s

judgment.



                                                    /David J. Schenck/
DO NOT PUBLISH                                      DAVID J. SCHENCK
TEX. R. APP. P. 47                                  JUSTICE

141264F.U05




                                               –10–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

DEMUNTRA RASHARD GREEN,                            On Appeal from the 195th Judicial District
Appellant                                          Court, Dallas County, Texas
                                                   Trial Court Cause No. F-1356459-N.
No. 05-14-01264-CR        V.                       Opinion delivered by Justice Schenck.
                                                   Justices Evans and Whitehill participating.
THE STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 3rd day of November, 2015.




                                            –11–
