No. 12-06-00287-CR
Opinion delivered August 22, 2007. DO NOT PUBLISH.
Appeal from the Third Judicial District Court of Anderson County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
JAMES T. WORTHEN, Justice.
Esequeil Loredo appeals from his conviction for aggravated assault. In five issues, he argues that the trial court failed to give a required jury instruction, that evidence about gang membership was improperly admitted, and that the evidence is legally and factually insufficient to support the conviction. We affirm.
BACKGROUND
On March 1, 2001, a group of inmates in the Michael Unit of the Texas Department of Criminal Justice killed inmate Rogelio Garza. The evidence is not without contradiction, but it appears that the inmates assaulted Garza to discipline him for incurring debts he could not pay, debts he had incurred by using contraband tobacco and heroin he could not afford. Garza had an enlarged spleen. The assault caused his spleen to burst, and he died as a result of internal bleeding that followed. There was some testimony that Appellant participated in the assault, but the State's theory of his liability was that he was a party to the offense, that he instigated it, and that he served as a lookout. Appellant was indicted for the capital murder of Rogelio Garza on September 5, 2002. On January 19, 2006, Appellant was indicted for the aggravated assault of Rogelio Garza. The second indictment was returned outside the statute of limitations for aggravated assault, but it was alleged in the second indictment that the first indictment had been pending from September 5, 2002 until January 18, 2006. The second indictment also alleged that Appellant was an habitual offender. Appellant filed a pretrial motion to set aside the second indictment, and the trial court denied that motion. Appellant pleaded not guilty to the second indictment, and a jury trial was held. The jury convicted him of aggravated assault. After a separate punishment hearing, the jury found the enhancement allegations to be true and assessed punishment at thirty-nine years of imprisonment. This appeal followed. STATUTE OF LIMITATIONS
In his first issue, Appellant argues that the question of whether the State had proved that the indictment was brought within the statute of limitations should have been submitted to the jury. In his fourth and fifth issues, Appellant argues that the State failed to prove that this prosecution was not barred by the statute of limitations. We will address these issues together. Tolling of the Statute of Limitations
Prosecutions for aggravated assault must be initiated within three years of the assault. TEX. CODE CRIM. PROC. ANN. art. 12.01(6) (Vernon 2006). That period of limitations may be tolled for the period of time that an earlier indictment is or was pending. See TEX. CODE CRIM. PROC. ANN. art. 12.05(b) (Vernon 2006). A prior indictment tolls the statute of limitations under Article 12.05(b) when the subsequent indictment alleges the same conduct, same act, or same transaction. Hernandez v. State , 127 S.W.3d. 768, 774 (Tex.Crim.App. 2004). At trial, a defendant may assert a limitations defense by requesting a jury instruction on the issue if there is some evidence before the jury, from any source, that the prosecution is limitations barred. See Proctor v. State , 967 S.W.2d 840, 844 (Tex.Crim.App. 1998). If there is some such evidence and the defendant requests a jury instruction on the limitations defense, then the State must prove beyond a reasonable doubt that the prosecution is not limitations barred. Id. Analysis
Appellant requested a jury instruction on the statute of limitations defense. On appeal, he argues that the jury instruction should have been given because the defense was raised and that he is entitled to an acquittal or a new trial because there is insufficient evidence that the prosecution was brought within the statute of limitations. The parties agree that the second indictment would be limitations barred if not for the tolling provided by the first indictment. Appellant argues that the first indictment did not toll the statute of limitations because the tolling allegation in the second indictment had the following perceived deficiencies: 1) The tolling allegation in the second indictment alleged a different offense.
2) The second indictment "did not allege that the indictment previously pending was for an offense against the same victim."
3) The second indictment "does not allege that the indictment previously pending was for the same conduct charged in the indictment."
4) The second indictment "does not allege that the grand jurors found that a prior grand jury had returned an indictment against the defendant."
5) The second indictment "does not allege that the grand jurors had found that a prior indictment had been determined to be invalid, or otherwise ceased to exist."
6) The second indictment does not allege the date on which the grand jurors found the prior indictment to be invalid.
Appellant provides no citation to authority for the proposition that these deficiencies mean the statute of limitations was not tolled by the first indictment. He repeats these arguments with respect to the sufficiency of the evidence, again without citation to authority. The assertion that the prosecution is time barred and that the tolling allegation is insufficient because the offenses are different is incorrect. In Hernandez , 127 S.W.3d at 774, the Texas Court of Criminal Appeals held that "a prior indictment tolls the statute of limitations under Article 12.05(b) for a subsequent indictment when both indictments allege the same conduct, same act, or same transaction." The first indictment alleged that Appellant knowingly or intentionally caused Rogelio Garza's death on March 31, 2001. The second indictment, as amended, alleged that Appellant intentionally, knowingly, or recklessly caused serious bodily injury to Rogelio Garza by striking Garza with his foot or hand and that the conduct was the same as that alleged in the first indictment. As a matter of pleadings, the second indictment alleges that it is the same conduct that is covered by each indictment. As a matter of proof, the evidence adduced at trial showed a single incident that included the killing of Rogelio Garza on March 31, 2001 as well as the aggravated assault of Rogelio Garza on March 31, 2001. There were not two incidents, or two transactions, or two Rogelio Garzas. Appellant's arguments that the State did not allege and did not prove that it was the same victim in each indictment or that it was the same conduct in each indictment are similarly without merit. The only evidence was that it was the same victim in each indictment and the same conduct. With respect to pleadings, the court of criminal appeals has not required that tolling allegations be pleaded with the same degree of particularity as would be expected of an allegation of the charged offense. Ex parte Smith , 178 S.W.3d 797, 803 (Tex.Crim.App. 2005). The second indictment did allege, in conclusory fashion, that it was the same conduct that was the basis of the first indictment. Even if this pleading was insufficient, complaints about pleadings are waived if they are not challenged prior to trial. Id. Appellant did preserve these complaints by filing a pretrial motion to set aside the indictment, but does not presently challenge the trial court's ruling denying that motion. Appellant's argument that the second indictment did not allege the grand jurors found that a prior grand jury had returned an indictment against him is belied by the second indictment, which states that an indictment charging the same conduct was pending, and provides the cause number. Appellant's argument that the grand jurors did not find the previous indictment to be invalid or the date on which it became invalid is apparently a reference to Texas Code of Criminal Procedure, Article 12.05(c), which provides that the definition of "during the pendency" of the previous indictment is measured from the date it is filed until the date it is determined to be invalid. It is possible to read the "during the pendency" language to mean that there is no pendency until the previous indictment has been found to be invalid. In other words, an indictment tolls the statute of limitations only after it has been found to be invalid. Appellant offers no support for this construction of the statute, nor have we found any. The court of criminal appeals has held that it is absurd to construe Article 12.05 to allow only invalid indictments to toll the limitations period. See Vasquez v. State , 557 S.W.2d 779, 784 (Tex.Crim.App. 1977), overruled on other grounds, Proctor v. State , 967 S.W.2d 840, 844 (Tex.Crim.App. 1998). Furthermore, a dismissal of an indictment is sufficiently akin to a finding of invalidity that it ends the tolling period under the statute. See McAlister v. State , 119 S.W.3d 460, 462 (Tex.App.-Fort Worth 2003, no pet.). Absent more explicit direction, we cannot conclude that the tolling period does not exist in this case simply because the State had not dismissed the first indictment before the second indictment was returned. By statute, the statute of limitations was tolled from the time the first indictment was filed until it was determined to be invalid. At the time of trial, the first indictment was still pending. Therefore, the endpoint of the tolling period had not been reached, and the first indictment tolled the statute of limitations starting from the time it was returned and ending, if it did, at some point after the second indictment was returned. Having concluded that there was not a pleading or a proof issue with respect to the tolling provision, the question remaining is whether the issue should nevertheless have been submitted to the jury. The trial court's duty to instruct the jury on a statute of limitations defense is triggered only upon request and where there is an evidentiary dispute as to whether the offense was committed within the limitations period. See Proctor , 967 S.W.2d at 844. In Howlett v. State , 994 S.W.2d 663, 668 (Tex.Crim.App. 1999), the court of criminal appeals concluded that the trial court was not required to give an instruction on limitations because there was no factual dispute as to whether the offense was committed within the limitations period. In an earlier case, the court of criminal appeals held that a jury instruction on limitations is not required when the tolling of the indictment is beyond factual dispute. See Ex parte Morin , 172 Tex. Crim. 322, 323, 356 S.W.2d 689, 689 (Tex.Crim.App. 1962). It is the requirement that the limitations defense have evidence to support it that Appellant did not meet. See Proctor , 967 S.W.2d at 844 (there must be some evidence before the jury that the prosecution is limitations barred). The relevant facts about the indictments were undisputed. Appellant makes a number of legal arguments about the insufficiency of the tolling allegations. The pleading related complaints are not important because Appellant does not argue that the trial court erred when it overruled those complaints. With respect to the evidence supporting the defense, there is no reasonable dispute that it was the same transaction or occurrence that each indictment described. As such the statute of limitations was tolled, and it was not error for the trial court not to instruct the jury on a limitations defense. Appellant's arguments about the sufficiency of the evidence also fail. The State is required to prove the prosecution is not limitations barred only if the "defendant requests a jury instruction on the limitations defense" and "there is some evidence before the jury, from any source, that the prosecution is limitations-barred." Proctor , 967 S.W.2d at 844. There being no evidence before the jury that the prosecution was limitations barred, the State's obligation to prove that the prosecution was not limitations barred was not triggered. We overrule Appellant's first, fourth, and fifth issues. GANG EVIDENCE-GUILT/INNOCENCE
In his second issue, Appellant argues that the trial court erred when it allowed "gang identification" evidence to be admitted during the guilt/innocence phase of the trial. This complaint is not preserved for our review. Prior to trial, Appellant filed a motion in limine to restrict testimony about his gang affiliation. During trial, and before the State called one of the inmate witnesses, the prosecutor alerted the court and Appellant that she wished to introduce "gang information" to show motive, plan, and "same transaction evidence." Appellant's counsel argued that the evidence should not be admitted, and a lengthy discussion ensued between the court and the lawyers. The court alerted the parties that it was going to allow the evidence, but also said that it had not heard any evidence yet and that their discussion had been about whether a motion in limine should be granted. The court told Appellant's counsel that its limine ruling was preliminary and the court would consider and rule on objections, if made, when the evidence was offered. The State then called the inmate, who testified that Appellant approached him and asked him to help discipline Garza. The inmate testified that it was understood that the discipline order came from third parties. When asked who the third parties were, he said, "Mexican Mafia." The State responded, "No, I mean the people, names," and the witness agreed to a list of inmates who comprised the third parties. Appellant did not object to this testimony, and no other testimony or evidence about gangs was introduced during the guilt/innocence phase of the trial. To preserve a complaint for appeal, a defendant must object, state the grounds for the objection with sufficient specificity, and obtain an adverse ruling. TEX. R. APP. P. 33.1 (a)(1(A); Wilson v. State , 71 S.W.3d 346, 349 (Tex.Crim.App. 2002). The denial of a motion in limine does not preserve a complaint. Roberts v. State , 220 S.W.3d 521, 533 (Tex.Crim.App. 2007); Martinez v. State , 98 S.W.3d 189, 193 (Tex.Crim.App. 2003). Appellant did not object to the trial court's characterization of the discussion as being about a motion in limine and never gave the trial court an opportunity to consider whether the inmate's nonresponsive answer should have been stricken. Because there was no objection at the time the evidence was admitted, no complaint is preserved for our consideration. See Hatchett v. State , 930 S.W.2d 844, 849 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd). We overrule Appellant's second issue. GANG EVIDENCE-PUNISHMENT
In his third issue, Appellant argues that the trial court erred when it allowed an expert witness to testify to anything more than the fact that he was a gang member. Appellant cites twelve objections raised in the trial court and then argues that evidence of his gang membership should not have been allowed at all. We will address the broader argument. Testimony
Robert Grant is the Regional Security Threat Coordinator for the Texas Department of Criminal Justice. Since 1993 he has worked in the prison system on gang related issues, first as an intelligence officer investigating gang membership and activities and then supervising those who do that investigative work. Part of his duties include reviewing the work of investigators who identify gang members. He testified that the review is highly structured and that other agencies rely upon their determinations. Grant testified that his office had determined that Appellant was a member of the Mexican Mafia, a prison gang. This determination was made after consideration of intercepted mail between inmates, tattoos on Appellant's body, intercepted letters that Appellant had written, and a list of gang members recovered from an admitted gang member. Grant also testified that the Mexican Mafia was a violent prison gang with a hierarchical structure and a written constitution. The written constitution, according to Grant, states that the Mexican Mafia is a criminal organization, and that it would be involved in drug sales, extortion, murder for hire, assaults, and other activities that advanced the organization. He testified that the Mexican Mafia had been involved in a number of violent activities in the prison and that the leaders of the organization were able to control the organization even from solitary confinement. He testified that the gang would discipline its own members if they misbehaved, and that discipline decisions were made by someone other than the entry level gang members. Analysis
In his first and fourth subarguments, Appellant argues that it violates his rights to free association to allow testimony about his gang membership. Citing Dawson v. Delaware , 503 U.S. 159, 112 S. Ct. 1093, 117 L. Ed. 2d 309 (1992), Appellant argues that admission of irrelevant evidence of gang membership is constitutional error. Dawson is distinguishable from this case because the holding in Dawson turned on the narrow stipulation of facts about the gang of which Dawson was a member. In lieu of the State calling an expert witness, the parties stipulated that the Aryan Brotherhood was a "white racist prison gang that began in the 1960's in California in response to other gangs of racial minorities. Separate gangs calling themselves the Aryan Brotherhood now exist in many state prisons including Delaware." Id. , 503 U.S. at 162, 112 S. Ct. at 1096. The evidence tended to show that Dawson was a member of the Aryan Brotherhood prison gang in Delaware. But because the stipulation did not contain any further information about the Delaware gang, or link the beliefs of the California gang to the Delaware gang, or provide any information about the beliefs of the gang beyond the fact that the California gang held racist beliefs, the Court concluded that the evidence was irrelevant to that proceeding. Id. , 503 U.S. at 166, 112 S. Ct. at 1098. The Court recognized that in cases where membership in a gang is linked by proof to the crime itself, evidence of membership or beliefs may be relevant. Id. (citing Barclay v. Florida , 463 U.S. 939, 949, 103 S. Ct. 3418, 77 L. Ed. 2d 1134 (1983)). The Court believed that racist beliefs did not play a part in the murder in Dawson because the victim was white, but the Court allowed that evidence could be relevant if the State had presented evidence beyond the defendant's own abstract beliefs. Id. , 503 U.S. at 167, 112 S.Ct. at 1098. Therefore, to prove the relevance of a defendant's membership in an organization or group, the State must show (1) proof of the group's violent and illegal activities, and (2) the defendant's membership in the organization. See Mason v. State , 905 S.W.2d 570, 577 (Tex.Crim.App. 1995). In this case, the State showed that the offense was linked to gang membership and provided a great deal of context about the activities of the gang including its goals as stated in a written constitution, which included violent acts. Texas courts have consistently held that evidence of gang membership is admissible when it is relevant in the punishment phase of trial. Jones v. State , 944 S.W.2d 642, 653 (Tex.Crim.App. 1996); Beasley v. State , 902 S.W.2d 452, 456 (Tex.Crim.App. 1995). The evidence admitted here was relevant because it linked the offense to Appellant's gang membership, and so Appellant's right to associate was not violated. In his second and third subarguments, Appellant argues that a witness may not testify about a defendant's character unless the witness was familiar with that person's character prior to the offense. See Hernandez v. State , 800 S.W.2d 523, 525 (Tex.Crim.App. 1990). In his twelfth subargument, again citing Hernandez , Appellant argues that Grant could not testify that he was a gang member because the prison authorities had not confirmed that he was a member of a gang at the time of the assault. But the holding in Hernandez is based on the specific language of a precursor to Texas Rule of Evidence 405. In relevant part, the current version of Rule 405 provides that "[i]n a criminal case, to be qualified to testify at the guilt stage of trial concerning the character or character trait of an accused, a witness must have been familiar with the reputation, or with the underlying facts or information upon which the opinion is based, prior to the day of the offense." TEX. R. EVID. 405 (emphasis added). Assuming that this was character or reputation evidence, this portion of Rule 405 applies only to the guilt stage of trial. The gang evidence was introduced at the punishment phase, and so this part of Rule 405 and Hernandez do not apply. In his fifth, eighth, ninth, tenth, and eleventh subarguments, Appellant argues that his right to confront and cross examine witnesses as guaranteed by the Texas and U.S. constitutions and the evidentiary rules regarding hearsay were violated when Grant was permitted to testify about Appellant's gang status based on correspondence between inmates that was intercepted by prison officials. The letters themselves were not admitted. In the appropriate circumstances, an expert may rely upon hearsay in formulating an opinion. TEX. R. EVID. 703. Appellant did not contest that the witness was an expert. In fact, when discussing her objections to his testimony, Appellant's counsel did not object on the grounds that the witness was not an expert and said, "I'm sure he is an expert." Some of the letters were from Appellant himself. No confrontation issues or hearsay issues are raised by the expert relying on Appellant's own words. See Crawford v. Washington , 541 U.S. 36, 51, 124 S. Ct. 1354, 1364, 158 L. Ed. 2d 177 (2004) (The Confrontation Clause "applies to `witnesses' against the accused — in other words, those who `bear testimony.'"); TEX. R. EVID. 801(e)(2)(A) (statements by party/opponent are not hearsay). Grant also relied on letters from other individuals, mostly relating to gang activity. Appellant cites Crawford and Russeau v. State , 171 S.W.3d 871 (Tex.Crim.App. 2005) as support for his argument that relying on these letters violates his Sixth Amendment right to confrontation. In Crawford , the Supreme Court held that it violated the Sixth Amendment to allow testimonial hearsay to be admitted without giving the defendant the opportunity to question the declarant. Crawford , 541 U.S. at 59, 124 S. Ct. at 1369. Statements are testimonial hearsay if they are ex parte in court testimony or its functional equivalents, including affidavits, depositions, prior testimony, or confessions or statements that are made under circumstances where the speaker would reasonably believe that the statement would be used at a later trial. Id. , 541 U.S. at 51-52, 124 S. Ct. at 1364. In Russeau the court of criminal appeals held that admitting ex parte affidavits of government employees was error because those affidavits were testimonial hearsay. Russeau , 171 S.W.3d at 881. By contrast, the items here, letters by inmates in the prison system, were not admitted and were not testimonial. A letter from one gang associate to another conducting gang business is not like an affidavit or a deposition and is not a statement one would expect to be used at trial to prove a fact. These letters are more like a casual remark to an acquaintance, see Crawford , 541 U.S. at 51, 124 S. Ct. at 1364, are not testimonial, and do not implicate the Confrontation Clause. In his sixth and thirteenth subarguments, Appellant argues that the testimony by Grant was speculative and therefore inadmissible. We disagree. Grant testified that the determination that a prisoner was a gang member is made after careful consideration and on the basis of a number of different criteria. He testified that his group identified Appellant as a gang member based on his name being on a list of gang members kept by another gang member, his correspondence with gang members about the internal activities of the Mexican Mafia, distinctive gang tattoos, a letter stating that Appellant had been "cleared as a member," and a letter from Appellant asking who his gang sponsor was, apparently written after he had been transferred from one unit to another. There was a substantial basis for the expert witness's conclusion that Appellant was a gang member, and the trial court did not err when it overruled Appellant's objection that the testimony was speculative. In his seventh subargument, Appellant argues that the witness had no personal knowledge that Appellant was a gang member and that he was not qualified as an expert witness. If the appropriate predicate is shown, an expert may testify about things beyond his personal knowledge. See Aguilar v. State , 887 S.W.2d 27, 29 (Tex.Crim.App. 1994); TEX. R. EVID. 703. Appellant does not argue that a predicate was not presented to permit Grant to testify about the conclusions he drew from the evidence his investigators collected about Appellant's gang affiliation. As shown above, Appellant did not object to the witness's qualification as an expert witness. Instead, Appellant's counsel stated that she was sure he was an expert. The present complaint that he was not an expert is waived for failure to make a contemporaneous objection. See TEX. R. APP. P. 33.1 (a)(1(A). Finally, Appellant argues briefly that discovery related to the expert witness was not provided in an timely fashion. The prosecutor stated that she turned the relevant documents over to Appellant's counsel when she received them. There was a broad ranging discovery order entered prior to trial, but we cannot determine if these items were required to be disclosed or provided. In his one sentence argument on this point, Appellant does not identify where these items are addressed in the discovery order. Even if there was a discovery violation, a continuance, not exclusion of the evidence, is the ordinary remedy when a discovery violation is not willful. See State v. LaRue , 152 S.W.3d 95, 100 (Tex.Crim.App. 2004); Tamez v. State , 205 S.W.3d 32, 40 (Tex.App.-Tyler 2006, no pet.). Appellant did not seek a continuance and did not and does not argue that the violation, if any, was willful. We conclude that the trial court's decision to allow the testimony despite Appellant's complaints about late discovery was not an abuse of discretion. See Martinez v. State , 867 S.W.2d 30, 39 (Tex.Crim.App. 1993). In sum, the trial court did not err when it allowed the State's expert witness to testify that Appellant was a member of a gang. The testimony was based in part on hearsay and the synthesis of investigatory materials, but Appellant has not shown that the expert's conclusions were not based on the kinds of materials experts may consider in reaching their opinions. Appellant's right to confrontation was not violated because no testimonial hearsay was presented or relied upon. Finally, the rules of evidence do not require that an expert testifying during the punishment phase of a trial be aware of the person's gang membership at the time of the underlying offense. We overrule Appellant's third issue. DISPOSITION
Having overruled Appellant's five issues, we affirm the judgment of the trial court.