Opinion
No. 05-03-00544-CR.
Opinion Filed March 16, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-60421-SP. Affirm.
Before Justices MOSELEY, FITZGERALD, and FRANCIS.
OPINION
Levis Flores appeals his conviction for aggravated robbery. After finding appellant guilty, the jury assessed his punishment at imprisonment for life and a $10,000 fine. Appellant brings five issues asserting the evidence is factually insufficient and the trial court erred in denying appellant's motion to suppress and overruling his objections to the admission of evidence. We affirm the trial court's judgment.
FACTUAL BACKGROUND
On December 25, 2001, at about 8:00 p.m., Juan Velasquez and his wife, Mayra Flores, drove to Flores's brother's apartment for Christmas dinner. He was not at the apartment, so they returned to their car to leave. As they were about to drive away, a red Toyota Corrolla blocked them. Four Hispanic men ran up to Velasquez's car. Two men went to Velasquez's side of the car, a short, fat man with a shaved head and wearing a Cowboys jacket and a tall, thin man with tattoos on his forehead and wearing a cap turned backwards. Velasquez identified appellant as the tall, thin man with the tattooed forehead and appellant's co-defendant, Juan Guzman, as the short, fat man. Two other men went to Flores's side of the car. At gunpoint, the men demanded Velasquez's and Flores's valuables. Velasquez testified the men spoke with El Salvadoran accents. A fifth man stood behind the car and told the other four men to hurry. They took Velasquez's ring and wallet, about $300 cash, and Flores's rings, earrings, leather jacket, and a bracelet. The men threatened to cut off Flores's hand if she could not remove the bracelet. The men took Velasquez's car keys and drove away in the Toyota. Velasquez flagged down a passing policeman, Dallas Police Officer John O'Brien, who radioed a description of the robbers' car. About a half hour later, O'Brien drove Velasquez and Flores to a red car near a restaurant, but they told the officer that was not the car. About ten minutes later, Dallas Police Officer David Davis saw what he believed to be the correct car at a drive-through beer store. As the car left the store, Davis turned his spotlight on the car and saw there were five occupants matching the race and clothing descriptions of the suspects. Davis followed the vehicle and radioed for assistance. When more police arrived, Davis initiated a traffic stop. Appellant was in the backseat with his hand over a gun. The officers removed the men from the vehicle and handcuffed them. O'Brien drove Velasquez and Flores past the suspects, and they identified the men as the robbers. Inside the car, the officers found Flores's leather jacket in the back seat, Flores's gold bracelets in the glove box, Velasquez's and Flores's identification cards on the front floorboard, Flores's earrings in a wallet found in Guzman's pocket, and $281. None of the stolen property was found on appellant's person.FACTUAL SUFFICIENCY
In his first issue, appellant asserts the evidence was factually insufficient to support his conviction because the testimony established that appellant was misidentified as one of the robbers. In analyzing whether the evidence was factually sufficient to support the conviction, we must determine "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000) (adopting the complete civil factual sufficiency standard of review). We must set the verdict aside only if it is so factually insufficient or against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Id.; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In conducting this analysis, the appellate court must defer to the trier of fact's determination concerning the weight given contradictory evidence. Johnson, 23 S.W.3d at 8; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim. App. 1997); Santellan v. State, 939 S.W.2d 155, 164-65 (Tex.Crim. App. 1997). The reviewing court is not free to reweigh the evidence and set aside a guilty verdict merely because the reviewing judges feel that a different result is more reasonable. Clewis, 922 S.W.2d at 135. Rather, the purpose of this analysis is to allow an appellate court, in the exercise of its fact jurisdiction, to prevent a manifestly unjust result. Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 135. Appellant argues the evidence is factually insufficient because Flores did not identify appellant; however, she was being robbed by two other men and being threatened with amputation while appellant and Guzman were robbing Velasquez. Appellant argues the evidence was factually insufficient because the lighting was limited; however, there was a streetlight on pole nearby and Velasquez testified he got a good look at the robbers while they were standing over him and going through his pockets. Appellant argues, "after the robbery, both the complainant [Velasquez] and his wife were `traumatically shaken' and thus unable to make a proper and valid identification of any suspect." Appellant does not explain why the trauma of the robbery left Velasquez and Flores unable to identify the robbers; it appears their heightened awareness due to the trauma left them at least as capable to identify their robbers. Their ability to avoid an incorrect identification was shown by the fact they said the first car they were taken to was not the car used by their robbers. Appellant's argument that the trauma left Velasquez and Flores incapable of identifying the robbers lacks merit. The evidence shows appellant was in the car with the other robbers within an hour after the robbery; he matched the physical description Velasquez gave of him, including having a tattooed forehead; Velasquez identified appellant as being one of the robbers, and although none of the property was on his person, Velasquez's and Flores's property was found in the car and in the pockets of the other men in the car. The record contains no evidence that appellant was not one of the robbers. After reviewing all the evidence in a neutral light, we conclude that the proof of appellant's guilt "is [not] so obviously weak as to undermine confidence in the jury's determination, [n]or [is] the proof of guilt, although adequate if taken alone, . . . greatly outweighed by contrary proof." Johnson, 23 S.W.3d at 11. We hold the evidence is factually sufficient to support appellant's conviction. We resolve appellant's first issue against him.REASONABLE SUSPICION TO STOP
In his second issue, appellant asserts the trial court erred by denying appellant's motion to suppress evidence of the stop of the Toyota. Appellants argue the officers lacked reasonable suspicion to stop the vehicle. This Court reviews a trial court's ruling on a motion to suppress under the bifurcated standard enunciated in Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997). We give almost total deference to the trial court's findings of historical fact and review de novo the trial court's application of the law. See Guzman, 955 S.W.2d at 89. When a trial court's decision to admit or exclude evidence is correct based on any theory of law applicable to the case, the trial court's decision will be affirmed even if the trial judge has given an incorrect reason. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990); Knisley v. State, 81 S.W.3d 478, 481 (Tex. App.-Dallas 2002, pet. ref'd). A police officer is justified in stopping and briefly detaining a person for investigative purposes if he has reasonable suspicion supported by articulable facts that the person is, has been, or soon will be involved in criminal activity, even if evidence falls short of "probable cause." See Terry v. Ohio, 392 U.S. 1, 30 (1968); Green v. State, 93 S.W.3d 541, 544 (Tex. App.-Texarkana 2002, pet. ref'd). In a suppression hearing, the State has the burden to prove the reasonableness of the stop. Green, 93 S.W.3d at 544; Tex. Dep't of Pub. Safety, 56 S.W.3d 159, 163 (Tex. App.-Dallas 2001, no pet.). In this case, O'Brien broadcast Velasquez's description of the color, make, and model of the suspects' car and the number, age, race, hair, and clothing of the suspects. Davis saw a car of the described color, make, and model containing five Hispanic men of the correct age, some of whom had shaved heads, and dressed according to the description. We conclude these facts gave Davis reasonable articulable suspicion to believe the men in the car had been involved in the criminal activity of robbing Velasquez and Flores. We hold the trial court did not err in denying appellant's motion to suppress. We resolve appellant's second issue against him.PUNISHMENT ISSUES
Appellant's third, fourth, and fifth issues concern the evidence presented at the punishment phase of the trial. During the punishment phase, the State presented evidence of appellant's membership in a gang called Mara Salvatrucha or MS 13. The State presented testimony of police officers specializing in the investigation of gangs who testified about the violent history of MS 13 and its current illegal activities, including being an "enforcer" for the Mexican Mafia. The gang experts testified that appellant's membership in the gang was apparent from the "MS" tattooed on his forehead and the "M 13 S" tattooed on his back. The State also presented evidence that appellant was involved in an aggravated assault in Virginia on May 17, 2001, an aggravated robbery of a convenience store in Grand Prairie on December 15, 2001, and a murder in Grand Prairie on December 16, 2001. In the May 17, 2001 aggravated assault, appellant and three other men armed with baseball bats and metal tubing attacked some students near a high school in Arlington, Virginia. At that time, appellant did not have the tattoo on his forehead. In the December 15, 2001 aggravated robbery, appellant, who wore a knit cap pulled over his forehead, put a gun to the store owner's head and threatened to kill him while appellant's accomplices stole the owner's valuables from his person and broke open the cash register. Before leaving the store, appellant struck the owner in the back of the head with the gun. The blow knocked out the owner for a few minutes, cut open his head, caused him to bleed profusely, and required stitches to close the wound. In the December 16, 2001 murder, Ninfa Perez testified appellant used his girlfriend to lure Javier Calzada to a deserted area, and appellant and his fellow gang members forced Calzada into the woods at gunpoint. The muzzle of a gun was placed against the back of Calzada's head and fired, killing him. Perez testified that appellant and the other gang members stole Calzada's shoes, watch, necklace, wallet, and cell phone. Calzada's body was left in the woods. Appellant stole Calzada's vehicle. When Calzada's body was discovered on December 27, 2001, it was partly "skeletonized" due to animal depredation.Evidence of Gang Violence
In his third and fourth issues, appellant asserts the trial court erred in overruling his objections to the testimony of officers Richard Rodriguez and Dianna McLuckie about gang violence because the evidence's probative value was substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. The officers testified that MS 13 was started by El Salvadoran immigrants to California to protect themselves from other Hispanic gangs. MS 13 later expanded across the country and back to El Salvador, from which they import illegal weapons. Appellant complains of Rodriguez's and McLuckie's description of the activities of the MS 13 gang as consisting of "murders, attempted murders, car jackings, robberies, felony assaults, assault and batteries, rapes, extortions, witness intimidation," as well as drug and weapons trafficking. The gang is based on terror and intimidation. The gang recruits from junior-high and high schools as well as from nightclubs. The officers testified that the gang formed an alliance with the Mexican Mafia, supplying it with drugs and performing assassinations and business extortions for the Mexican Mafia. The officers also testified that MS 13 gang members are not allowed to have a tattoo on the neck or head unless they murder a rival gang member or assault a police officer in the presence of fellow gang members. In determining whether the probative value of relevant evidence is substantially outweighed by the danger of unfair prejudice, the trial court considers (1) the probative value of the evidence, (2) the potential of the evidence to impress the jury in an irrational and indelible way, (3) the time needed to develop the evidence, and (4) the proponent's need for the evidence. Reese v. State, 33 S.W.3d 238, 240-41 (Tex.Crim. App. 2000). "The reviewing court should, using an abuse of discretion standard, `do more than decide whether the trial judge did in fact conduct the required balancing between probative and prejudicial values; "the trial court's determination must be reasonable in view of all relevant facts."'" Id. at 241 (quoting Santellan v. State, 939 S.W.2d 155, 169 (Tex.Crim. App. 1997) (quoting the plurality opinion in Rachal v. State, 917 S.W.2d 799, 808 (Tex.Crim.App. 1996))). During the punishment phase, evidence of "any matter the court deems relevant to sentencing," including the defendant's character, is admissible. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2004). Evidence of gang membership may be introduced as evidence of the defendant's character. Anderson v. State, 901 S.W.2d 946, 950 (Tex.Crim.App. 1995). However, as the court of criminal appeals explained,Although relevant, gang membership alone would be meaningless to a jury which has no knowledge of the gang's purpose or activities. For the jury to assess a defendant's character based on his gang membership, not only should the jury know of the defendant's gang membership, but also of the activities and purposes of the gang to which he belongs. Without this additional information, the jury has nothing to conclude whether membership in this gang is a positive or negative character trait of the defendant.Id.; see also Beasley v. State, 902 S.W.2d 452, 456 (Tex.Crim. App. 1995). As this quotation illustrates, the probative value and the State's need for this evidence were high. The evidence was unlikely to impress the jury in an irrational way because other evidence showed appellant was involved with the gang in committing aggravated assault, aggravated robbery, and murder. Finally, the evidence did not take an unreasonable amount of time to develop before the jury. We conclude the trial court's decision to admit the evidence over appellant's objection was reasonable in light of all the facts and was not an abuse of discretion. We resolve appellant's third and fourth issues against him.