Opinion
02-22-00264-CR
09-07-2023
Nathaniel David McCurdy, Appellant v. The State of Texas
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from Criminal District Court No. 1 Tarrant County, Texas Trial Court No. 1749382R
Before Sudderth, C.J.; Womack and Wallach, JJ.
MEMORANDUM OPINION
Bonnie Sudderth Chief Justice
Appellant Nathaniel McCurdy appeals his convictions on one count of murder (Count Two), two counts of aggravated assault with a deadly weapon (Counts Four and Six), and three counts of engaging in organized criminal activity (Counts One, Three, and Five). See Tex. Penal Code Ann. §§ 19.02(b), 22.02(a)(2), 71.02(a)(1). On appeal, McCurdy argues in three points (1) that the evidence is legally insufficient to support his convictions on Counts One and Two because the State failed to corroborate his accomplice's inculpatory testimony; (2) that the evidence is legally insufficient to support the deadly weapon findings with respect to Counts Three, Four, Five, and Six; and (3) that the trial court abused its discretion by admitting certain evidence regarding motorcycle gang activities unrelated to McCurdy or his charged offenses. For the reasons set forth below, we modify the trial court's judgments on Counts Three and Four to delete the deadly weapon findings and to reflect convictions for the lesser-included offenses of assault causing bodily injury and engaging in organized criminal activity by committing assault and remand the case to the trial court for resentencing on those two counts. But we affirm the trial court's judgments in all other respects.
At trial, McCurdy was identified as a member of an outlaw motorcycle gang, the Pagans.
In his first and second points, McCurdy contends that the evidence was "legally and factually insufficient" to support the trial court's findings. But the Texas Court of Criminal Appeals has held that only one standard-legal sufficiency-should be used to evaluate whether the evidence is sufficient to support a criminal conviction beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 905-07 (Tex. Crim. App. 2010). Accordingly, we will treat McCurdy's arguments that the evidence was "legally and factually insufficient" as legal sufficiency arguments and will review them under that standard. See id.
As discussed more fully below, the State concedes that the record does not support the deadly weapon findings for Counts Three and Four because the evidence presented at trial did not establish that McCurdy used his hands and feet as deadly weapons during the specific criminal episode giving rise to this case. See Johnston v. State, 115 S.W.3d 761, 764 (Tex. App.-Austin 2003) (explaining that to be found as a deadly weapon, an "object [must] have more than a hypothetical capability of causing death or serious bodily injury" and that "[a] deadly weapon finding must be supported by evidence relating directly to the circumstances of the criminal episode"), aff'd, 145 S.W.3d 215 (Tex. Crim. App. 2004).
I. Background
On October 24, 2020, Chris Johnson and a group of his friends caravanned to the "Eight Ball" bar in Sansom Park, Texas. Johnson rode with his friend, Chris Tomlin.
That night, Johnson was wearing a black hat emblazoned with a red "81" outlined in white, a hat considered to be support gear for the criminal motorcycle gang Hell's Angels.
As explained at trial, the Hell's Angels have had a decades-old feud with a rival motorcycle gang, the Pagans.
While at the Eight Ball, one of Johnson's friends, Ryan Lovett, noticed that a group of people kept staring at their group from across the bar. Because this made Lovett uncomfortable, he and Johnson went outside to the parking lot. As they left, McCurdy, who was with the other group, followed them to the parking lot through a different door and positioned himself where he could watch them. McCurdy repeated this behavior each time any members of Johnson's group walked outside. And every time Johnson went outside, McCurdy interacted with his phone.
Lovett also noticed that more people kept arriving to join McCurdy's group as the night progressed. Among the new arrivals were Anthony Patterson and Chris Bailey. At some point, at least two other men wearing hoods and masks arrived and headed toward Johnson's group. McCurdy and Patterson joined these masked men, and Patterson slapped Johnson's hat off his head. McCurdy's cohorts then "escorted" Johnson, Lovett, and Tomlin out of the bar toward Tomlin's car. Tomlin proceeded toward the driver's side of his car while Johnson and Lovett approached from the passenger side.
Chris Bailey, the vice president of the Fort Worth Pagans at the time, testified that McCurdy texted him a picture of Johnson wearing the Hell's Angels hat and called him on the phone to say, "Hey, I'm at the Eight Ball. I got people at the doors blocking them. I can't get in and can't get out." Bailey said that he understood this to mean that McCurdy was surrounded and needed help.
Tomlin testified that members of McCurdy's group initially tried to prevent him from exiting the bar but that he was able to break free of them to join Johnson and Lovett in the parking lot.
As soon as Tomlin unlocked his car, a group of men attacked Tomlin, Lovett, and Johnson. Tomlin was struck on the back of his head and the side of his face. The attackers grabbed Lovett, threw him into the back seat, and blocked the door so that he could not get out. McCurdy and several other men attacked Johnson. As Lovett tried to kick open the door to free himself, one of the attackers stabbed him, cutting his leg. Eventually, Lovett and Tomlin were able to get Johnson into the car, and they drove away.
Bailey was the only witness who definitively testified that he saw McCurdy stab Johnson. Bailey testified that upon seeing McCurdy "going after" Johnson with his knife, he attempted to "get [McCurdy] off [of Johnson]" and that McCurdy inadvertently stabbed him multiple times in the arm in the process.
Lovett and Tomlin noticed that Johnson was bleeding profusely, and Johnson told them that he had been stabbed. Tomlin called 9-1-1, and the dispatcher advised him to pull over and remove Johnson from the car so that paramedics could meet them to start treating Johnson's wounds immediately. Johnson died from a punctured lung due to a stab wound to the torso.
McCurdy was indicted on six counts: one count of murder, two counts of aggravated assault with a deadly weapon, and three counts of engaging in organized criminal activity. He pleaded not guilty to all counts.
McCurdy was charged with crimes against three different victims: Johnson, Tomlin, and Lovett. Counts One and Two-engaging in organized criminal activity and murder-pertain to Johnson's stabbing. Counts Three and Four-engaging in organized criminal activity and aggravated assault with a deadly weapon-relate to the attack on Tomlin. Counts Five and Six-engaging in organized criminal activity and aggravated assault with a deadly weapon-stem from the attack on Lovett.
A jury convicted McCurdy on all six counts, and the trial court sentenced him to 50 years in prison on Counts One and Two and to 20 years in prison on the remaining counts. This appeal followed.
These sentences are to run concurrently.
II. Discussion
On appeal, McCurdy raises three points. First, he argues that the evidence is legally insufficient to support his convictions on Counts One and Two because the State failed to corroborate the inculpatory testimony of Bailey-McCurdy's accomplice and the only witness who actually saw McCurdy stab Johnson. Second, he contends that the evidence is insufficient to support the deadly weapon findings with respect to Counts Three, Four, Five, and Six because Bailey's testimony was not corroborated and because the State failed to prove (i) that McCurdy's hands and feet were deadly weapons as defined in Penal Code Section 1.07(a)(17) or (ii) that McCurdy used a knife or sharp object to assault Lovett. Third, he asserts that the trial court abused its discretion by admitting certain evidence regarding the Pagan motorcycle gang's criminal activities that are unrelated to McCurdy or his charged offenses. We address each of these points in turn below.
The trial court's jury charge stated that Bailey was an "accomplice" and instructed the jury on the accomplice-witness rule (discussed in greater detail below). On appeal, neither the State nor McCurdy disputes that Bailey was McCurdy's accomplice. Thus, we assume without deciding that Bailey was McCurdy's accomplice. See Tex. Code Crim. Proc. Ann. art. 38.14.
Lovett initially identified McCurdy as the person who attacked Johnson, but he later clarified that while he could identify McCurdy as "one of the attackers," he did not actually see McCurdy stab Johnson.
A. Point One: The State Corroborated Bailey's Testimony; Therefore, the Evidence Is Legally Sufficient to Support McCurdy's Convictions on Counts One and Two
In his first point, McCurdy argues that the evidence is legally insufficient to support his convictions on Counts One and Two because the State failed to corroborate Bailey's testimony that McCurdy stabbed Johnson. See Tex. Code Crim. Proc. Ann. art. 38.14 ("A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed[.]"). Thus, before we address whether the evidence is sufficient to support McCurdy's conviction on Counts One and Two, we must first determine whether Bailey's testimony was sufficiently corroborated.
1. Accomplice-Witness Rule: Applicable Law and Standard of Review
"Texas law provides that '[a] conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed[.]'" Zamora v. State, 411 S.W.3d 504, 509 (Tex. Crim. App. 2013) (quoting Tex. Code Crim. Proc. Ann. art. 38.14). This rule, commonly referred to as the "accomplice-witness rule," reflects the legislature's recognition "that accomplice testimony implicating another person should be viewed with a measure of caution, because accomplices often have incentives to lie, such as to avoid punishment or [to] shift blame to another person." Id. (quoting Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998)).
When an appellant challenges the sufficiency of the evidence corroborating an accomplice's testimony, "the reviewing court eliminates all of the accomplice testimony from consideration and then examines the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the crime." Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007) (citing Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001)). The sufficiency of nonaccomplice evidence is judged according to the facts and circumstances of each case. Smith v. State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011). We do not independently construe the nonaccomplice evidence but instead defer to the factfinder's resolution of it. Id.
"[T]he tends-to-connect standard does not present a high threshold." Cantelon v. State, 85 S.W.3d 457, 461 (Tex. App.-Austin 2002, no pet.) (quoting In re C.M.G., 905 S.W.2d 56, 58 (Tex. App.-Austin 1995, no writ)). To meet the rule's requirements, the corroborating evidence need not prove the defendant's guilt beyond a reasonable doubt by itself. Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008). Nor is it necessary for the corroborating evidence to directly link the accused to the commission of the offense. State v. Ambrose, 487 S.W.3d 587, 593 (Tex. Crim. App. 2016); Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999). Rather, the evidence-whether direct, circumstantial, or both-must show that rational jurors could have found that it sufficiently tended to connect the accused to the offense. Smith, 332 S.W.3d at 442; Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009).
Although the "mere presence alone of a defendant at the scene of a crime is insufficient to corroborate accomplice testimony," Malone, 253 S.W.3d at 257 (quoting Golden v. State, 851 S.W.2d 291, 294 (Tex. Crim. App. 1993)), evidence showing that the "accused was at or near the scene of the crime at or about the time of its commission . . . coupled with other suspicious circumstances, may . . . furnish sufficient corroboration to support a conviction," id. (quoting Brown v. State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984)). Circumstances that are apparently insignificant in and of themselves may nevertheless constitute sufficient evidence of corroboration. Trevino v. State, 991 S.W.2d 849, 852 (Tex. Crim. App. 1999); Simmons v. State, 205 S.W.3d 65, 73 (Tex. App.-Fort Worth 2006, no pet.).
2. The Evidence Sufficiently Corroborates Bailey's Testimony
The record contains ample nonaccomplice evidence to corroborate Bailey's testimony that McCurdy stabbed Johnson. For example, the record reflects that
• Johnson died from a stab wound;
• McCurdy was at the Eight Ball the night Johnson was killed and was seen carrying a knife inside a sheath on his hip shortly before Johnson was stabbed;
• McCurdy was part of the group that escorted Johnson and his friends out of the bar;
• McCurdy followed Johnson out of the bar to Tomlin's car;
• McCurdy and Johnson were both on the passenger side of Tomlin's car when Johnson was stabbed;
• Lovett identified McCurdy as one of the men who attacked Johnson;
• David Garcia, a regular Eight Ball patron who was there the night that Johnson was killed, told the police that McCurdy's knife sheath was empty after the altercation in the parking lot;
• The State's forensic video analyst testified that based on his review of the recorded surveillance footage, he believed that McCurdy was not merely a spectator but was actively engaged in Johnson's murder.
Garcia testified that he went to the Eight Ball every other weekend and that he saw McCurdy there "fairly often."
Viewing this evidence in its totality and deferring to the jury's resolution of it, see Smith, 332 S.W.3d at 442, we hold that a rational jury could have found that it tended to connect McCurdy to the attack on Johnson and his friends. See Tex. Code Crim. Proc. Ann. art. 38.14; Smith, 332 S.W.3d at 443; Qualls v. State, 547 S.W.3d 663, 672 (Tex. App.-Fort Worth 2018, pet. ref'd). We therefore hold that Bailey's testimony was sufficiently corroborated and was properly considered by the jury. See Qualls, 547 S.W.3d at 672; Jones v. State, No. 14-03-00650-CR, 2005 WL 549541, at *3 (Tex. App.-Houston [14th Dist.] Mar. 10, 2005, pet. ref'd) (mem. op., not designated for publication).
3. The Evidence Is Sufficient to Support McCurdy's Convictions on Counts One and Two
Having concluded that Bailey's testimony was sufficiently corroborated and was therefore properly considered by the jury, we must now determine whether the evidence-including Bailey's testimony-was legally sufficient to support McCurdy's convictions on Counts One and Two.
a. Standard of Review
In our evidentiary-sufficiency review, we view all the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found the crime's essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). This standard gives full play to the factfinder's responsibility to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Harrell v. State, 620 S.W.3d 910, 914 (Tex. Crim. App. 2021).
The factfinder alone judges the evidence's weight and credibility. See Tex. Code Crim. Proc. Ann. art. 38.04; Martin v. State, 635 S.W.3d 672, 679 (Tex. Crim. App. 2021). We may not re-evaluate the evidence's weight and credibility and substitute our judgment for the factfinder's. Queeman, 520 S.W.3d at 622. Instead, we determine whether the necessary inferences are reasonable based on the evidence's cumulative force when viewed in the light most favorable to the verdict. Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018); see Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017) ("The court conducting a sufficiency review must not engage in a 'divide and conquer' strategy but must consider the cumulative force of all the evidence."). We must presume that the factfinder resolved any conflicting inferences in favor of the verdict, and we must defer to that resolution. Braughton, 569 S.W.3d at 608.
To determine whether the State has met its burden to prove a defendant's guilt beyond a reasonable doubt, we compare the crime's elements as defined by a hypothetically correct jury charge to the evidence adduced at trial. Hammack v. State, 622 S.W.3d 910, 914 (Tex. Crim. App. 2021); see also Febus v. State, 542 S.W.3d 568, 572 (Tex. Crim. App. 2018) ("The essential elements of an offense are determined by state law."). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Hammack, 622 S.W.3d at 914. The law as authorized by the indictment means the statutory elements of the offense as modified by the charging instrument's allegations. Curlee v. State, 620 S.W.3d 767, 778 (Tex. Crim. App. 2021); see Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014) ("When the State pleads a specific element of a penal offense that has statutory alternatives for that element, the sufficiency of the evidence will be measured by the element that was actually pleaded, and not any alternative statutory elements.").
b. The Evidence Sufficiently Showed That McCurdy Murdered Johnson
Count Two of the indictment charged that McCurdy murdered Johnson, see Tex. Penal Code Ann. § 19.02(b), and Count One charged that McCurdy engaged in organized criminal activity by murdering Johnson, see id. § 71.02(a)(1). Thus, a hypothetically correct jury charge for Counts One and Two would require the State to prove, among other things, that McCurdy either (1) intentionally or knowingly caused Johnson's death by stabbing or cutting him with a knife or sharp object or (2) intended to cause serious bodily injury to Johnson and committed an act clearly dangerous to human life-namely, stabbing him with a knife or sharp object-that caused his death. See id. § 19.02(b)(1)-(2).
As more fully discussed below, to obtain a conviction on Count One, the State also needed to prove that McCurdy murdered Johnson "as a member of a criminal street gang." Tex. Penal Code Ann. § 71.02(a).
Although the indictment charged McCurdy as a principal, the trial court's jury charge allowed the jury to convict McCurdy as either a principal or a party. See Tex. Penal Code Ann. § 7.01(a) ("A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both."). Because we conclude that the evidence is sufficient to show that McCurdy murdered Johnson, we need not address whether it was sufficient to show McCurdy's party responsibility. See Tex.R.App.P. 47.1.
Viewed in the light most favorable to the verdict, the evidence is sufficient to support the jury's finding that McCurdy murdered Johnson by stabbing him. See Jackson, 443 U.S. at 319; Queeman, 520 S.W.3d at 622. Bailey unequivocally testified that he saw McCurdy stab Johnson, and because his testimony was corroborated, the jury was free to consider it in reaching its verdict. See Qualls, 547 S.W.3d at 672; Jones, 2005 WL 549541, at *3. Moreover, as detailed above, the record contains a substantial amount of additional evidence connecting McCurdy to Johnson's murder, including Lovett's identification of McCurdy as one of the men who attacked Johnson. Therefore, we hold that a rational jury could have found beyond a reasonable doubt that McCurdy murdered Johnson.
c. The Evidence Sufficiently Showed that McCurdy Murdered Johnson as a Member of a Criminal Street Gang
Count One alleged not only that McCurdy murdered Johnson but also that he did so "as a member of a criminal street gang." See Tex. Penal Code Ann. § 71.02(a). A hypothetically correct jury charge for Count One would thus require the State to prove that McCurdy, as a member of a criminal street gang, murdered Johnson. See Zuniga v. State, 551 S.W.3d 729, 735 (Tex. Crim. App. 2018); Villa, 514 S.W.3d at 232; see also Tex. Penal Code Ann. § 71.02(a)(1). To prove the "as a member" element, the State would have to prove that McCurdy was acting as a member of a group of "three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities." Zuniga, 551 S.W.3d at 735 (quoting Tex. Penal Code Ann. § 71.01(d)). "'[A]s' in the phrase 'as a member of a criminal street gang' [requires] proof that the defendant was acting '[i]n the role, capacity, or function of' a gang member at the time of the offense." Id. at 736 (quoting As, American Heritage College Dictionary (3d ed. 1993)). A conviction based on the hypothetically correct jury charge here, then, would require proof that McCurdy was acting in the role, capacity, or function of a gang member when he murdered Johnson. See id.; see also Baker v. State, No. 02-17-00193-CR, 2020 WL 1808292, at *6 (Tex. App.-Fort Worth Apr. 9, 2020, no pet.) (per curiam) (mem. op., not designated for publication).
The record contains copious evidence showing that McCurdy was a member of the Pagans at the time he murdered Johnson and that the Pagans constitute a "criminal street gang" for purposes of Penal Code Section 71.02(a). For example:
• An intelligence operations specialist with the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives who has been deemed an expert on outlaw motorcycle gangs explained that the Pagans started as a "loose-knit" motorcycle club, but in 1965, they "placed . . . a [one-]percent diamond on their colors, which meant that they were deemed an outlaw motorcycle gang";
• According to this same expert, a one-percent patch like the one added to the Pagans' colors signifies a "group of motorcyclists who voluntar[il]y band together to abide by their organization's rules, which [are] their bylaws, who engage in violence and often have serious, repeated conflicts with society and the law";
• The Pagans began engaging in criminal activity-including shootings, narcotics and firearms trafficking, murder, stabbings, and assault-around 1966;
• At the time of trial, the Pagans had between 2,100 and 2,200 members;
• The Pagans have a common sign or symbol-a Norse fire god called the Surtr;
• The Pagans favor certain colors-red, blue, gold, black, and white;
• The Pagans have identifiable leadership and an identifiable hierarchy in Texas;
• At the time of trial, there were currently ten Pagan chapters in Texas, including one in Fort Worth;
• At the time of trial, there were 37 documented Pagan members in Tarrant County;
• Garcia told the police that he knew that McCurdy was a member of "a one[-]percent club";
• Bailey testified that McCurdy was a member of the Pagans at the time Johnson was murdered;
• McCurdy's Pagan nickname is "Sparkplug";
• McCurdy texted Bailey a picture of Johnson's hat, which was identified as support gear for the Hell's Angels, the Pagans' "biggest enemy";
• Bailey went to the Eight Ball bar because he thought that McCurdy-a fellow Pagan-was in trouble;
• Several weeks after Johnson's murder, McCurdy sent Bailey a meme with the messages "Support 16"-a Pagan code meaning support the Pagans- and "ARGO/NUNYA"-another Pagan code meaning "don't say anything";
• Several weeks after Johnson's murder, McCurdy sent Bailey messages warning him of a police presence near a Pagan party; and
• McCurdy's trial counsel acknowledged in his closing argument that McCurdy was "at one time a member of the Pagans."
This evidence, viewed in the light most favorable to the jury's verdict, is sufficient to show that the Pagans are a "criminal street gang" and that McCurdy was a Pagan member at the time he murdered Johnson.
However, as noted above, to support a conviction on Count One, the evidence must also show that McCurdy was acting in the role, capacity, or function of a Pagan member when he murdered Johnson. See Zuniga, 551 S.W.3d at 736; Baker, 2020 WL 1808292, at *6. "To satisfy this requirement, the evidence need only be sufficient to show some nexus or relationship between the commission of the underlying offense and the defendant's gang membership." Zuniga, 551 S.W.3d at 739. Here, the record contains abundant evidence showing this nexus, including the following:
• The Pagans are involved in a decades-old feud with the Hell's Angels;
• Pagans are rewarded for acts of violence against Hell's Angels;
• Shortly before Johnson was murdered, McCurdy texted Bailey a picture of Johnson's hat, which was identified as support gear for the Hell's Angels;
• McCurdy and a group of men confronted Johnson at the Eight Ball, and a member of McCurdy's group slapped the hat from Johnson's head;
• McCurdy's group then escorted Johnson and his friends out of the bar;
• McCurdy's group then attacked Johnson and his friends in the parking lot;
• It was Bailey's understanding that McCurdy was to receive a patch at a Pagan party in February 2021 as a reward for his attack on Johnson and his friends.
Viewed in the light most favorable to the verdict, this evidence is sufficient to show that McCurdy was acting in the role, capacity, or function of a Pagan member when he murdered Johnson. See Zuniga, 551 S.W.3d at 736; Baker, 2020 WL 1808292, at *6.
Because a rational factfinder, having considered the evidence presented at trial, could have found beyond a reasonable doubt both that McCurdy murdered Johnson and that he did so as a member of a criminal street gang, we overrule McCurdy's first point. See Jackson, 443 U.S. at 319; Queeman, 520 S.W.3d at 622.
B. Point Two: There Is Sufficient Evidence to Support the Trial Court's Deadly Weapon Findings on Counts Five and Six, But Not on Counts Three and Four
In his second point, McCurdy argues that the evidence is legally insufficient to support the deadly weapon findings with respect to Counts Three, Four, Five, and Six. We partially agree.
McCurdy also extends to his second point the argument initially raised in his first point that Bailey's testimony was uncorroborated-and thus could not have been relied upon by the jury to sustain a conviction, see Tex. Code Crim. Proc. Ann. art. 38.14. Because Johnson, Lovett, and Tomlin were all the targets of the same attack and were all injured in the same melee, the evidence outlined above that tends to connect McCurdy to Johnson's murder also tends to connect him to the assaults on Lovett and Tomlin. See Smith, 332 S.W.3d at 443; Qualls, 547 S.W.3d at 672. Thus, we need not repeat our analysis of that evidence here. See Tex.R.App.P. 47.1.
1. Applicable Law Regarding Deadly Weapons
A deadly weapon is "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Penal Code Ann. § 1.07(a)(17)(B). "A deadly weapon finding must be supported by evidence relating directly to the circumstances of the criminal episode." Johnston, 115 S.W.3d at 764. For an object to constitute a deadly weapon, the evidence must show that it had more than a hypothetical capability of causing death or serious bodily injury. Id. Evidence that a factfinder may consider in determining whether an object was used as a deadly weapon includes the physical proximity between the victim and the object, any threats or words used by the defendant, the manner in which the defendant used the object, testimony by the victim that he or she feared death or serious bodily injury, and testimony that the object had the potential to cause death or serious bodily injury. Hopper v. State, 483 S.W.3d 235, 239 (Tex. App.-Fort Worth 2016, pet. ref'd).
A hand or foot may be a deadly weapon based on its manner of use or intended use and its capacity to produce death or serious bodily injury. Id. A person need not have intended to cause serious bodily injury or death-or to have actually caused serious bodily injury or death-for his hand or foot to constitute a deadly weapon. Id. But the injuries, if any, suffered by a victim are factors to be considered in determining whether a hand or a foot was used as a deadly weapon. Lane v. State, 151 S.W.3d 188, 191 (Tex. Crim. App. 2004). As long as the totality of the evidence shows that the defendant's hand or foot was capable of causing serious bodily injury or death in the manner that he used it, the jury is authorized to find that his hand or foot qualified as a deadly weapon. Hopper, 483 S.W.3d at 239.
2. Counts Three and Four
Counts Three and Four of the indictment allege that McCurdy assaulted Tomlin by "intentionally or knowingly threatening imminent bodily injury" or by "causing bodily injury . . . by hitting . . . [,] punching, or . . . kicking" and that during the assault he used or exhibited a deadly weapon-his "hands and/or feet." See Tex. Penal Code Ann. §§ 22.01(a)(1)-(2), 22.02(a)(2). But, as the State concedes, the record does not support the trial court's finding that McCurdy's "hands and/or feet" qualified as a deadly weapon under the circumstances of this case.
Count Three contains the same allegations as Count Four but additionally alleges that McCurdy committed the assault "as a member of a criminal street gang." See Tex. Penal Code Ann. § 71.02(a).
Although one witness-a police officer-testified that he had "worked cases where just hands and feet were used and somebody ended up dying," this testimony only establishes the possibility that hands and feet can be deadly weapons; it does not support a finding that McCurdy used his hands or feet as a deadly weapon in this particular case. See Johnston, 115 S.W.3d at 764. Additionally, though Tomlin's testimony established that he was assaulted, his injuries-a knot behind his ear and a small laceration on his chin-were relatively minor and are not sufficient in and of themselves to establish that McCurdy used his hands or feet in a manner capable of causing death or serious bodily injury. See Davis v. State, 533 S.W.3d 498, 509 (Tex. App.-Corpus Christi-Edinburg 2017, pet. ref'd) (concluding that bruising to victim's face, a laceration to his nose, and numbness on his head did not show that the appellant had used his hands as a deadly weapon); see also Lane, 151 S.W.3d at 191 (noting that injuries, if any, sustained by the victim are factors in determining whether a hand or a foot was used as a deadly weapon).
Because the record lacks sufficient evidence to show that McCurdy used his hands or feet as a deadly weapon during his assault on Tomlin, we sustain, in part, McCurdy's second point as it pertains to the deadly weapon findings in Counts Three and Four and modify the trial court's judgments to delete these deadly weapon findings. See Tex.R.App.P. 43.2(b). Further, because a deadly weapon finding is an element of aggravated assault-and likewise an element of engaging in organized criminal activity by committing aggravated assault-we additionally modify the judgments to reflect the lesser-included offenses of assault causing bodily injury and engaging in organized criminal activity by committing assault and remand this matter to the trial court to conduct a new punishment hearing on Counts Three and Four. See Tex. Penal Code Ann. §§ 22.01(a)(1), (b), 71.02(a)(1); see also Bowen v. State, 374 S.W.3d 427, 431-32 (Tex. Crim. App. 2012) (holding that if an appellate court concludes that the evidence supporting a conviction is legally insufficient, it may remand to the trial court for modification of the judgment to reflect a conviction of a lesser-included offense-even if the jury was not charged on the lesser-included offense-and to conduct a new punishment hearing).
Aggravated assault-including assault with a deadly weapon-is a second-degree felony, see Tex. Penal Code Ann. § 22.02(b), but assault causing bodily injury is only a Class A misdemeanor, see id. § 22.01(b). With certain exceptions that are not relevant here, engaging in organized criminal activity is punishable as one category higher than the most serious underlying offense, "and if the most serious offense is a Class A misdemeanor, the [engaging-in-organized-criminal-activity] offense is a state jail felony." Id. § 71.02(b). The maximum sentence for a Class A misdemeanor is one year, id. § 12.21(2), and the maximum sentence for a state jail felony is two years, id. § 12.35(a). Thus, the 20-year sentences that the trial court imposed for Counts Three and Four exceed the maximum allowable punishments for the lesser-included offenses of assault causing bodily injury and engaging in organized criminal activity by committing assault. Accordingly, resentencing is required.
Counts Three and Four of the indictment allege that McCurdy assaulted Tomlin either by threat, a Class C misdemeanor, see Tex. Penal Code Ann. § 22.01(c), or by causing bodily injury, a Class A misdemeanor, see id. § 22.01(b). But McCurdy acknowledges that the evidence at trial was related to an "assault by bodily injury," not an assault by threat. McCurdy further concedes that even absent the deadly weapon finding, his offense was a "class A assault." See id. § 22.01(b), (c) (indicating that, with certain exceptions, assault causing bodily injury is a Class A misdemeanor and assault by threat is merely a Class C misdemeanor). McCurdy's concessions distinguish this case from Rodriguez v. State, 454 S.W.3d 503, 509-11 (Tex. Crim. App. 2015) (op. on reh'g) (clarifying that "where there are multiple lesser-included offenses that meet the criteria for reformation, or where we have no way to determine which degree of the lesser-included offense the jury found the appellant guilty of," we must remand for a new trial rather than reforming the judgment to include a lesser-included offense). Thus, we conclude that reformation of the judgments to reflect the lesser-included offense of assault by bodily injury is the appropriate remedy and that it is unnecessary to remand Counts Three and Four for a new trial. Cf. Beedy v. State, 250 S.W.3d 107, 114 (Tex. Crim. App. 2008) (noting that decision to allow appellate courts to reform a judgment to remove an unlawful cumulation order rather than remanding for a new sentencing hearing was "reinforced" by the court's "interest in fostering judicial economy and conserving scarce judicial resources"); Stewart v. State, 13 S.W.3d 127, 132 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd) ("Remedies in criminal cases should be narrowly tailored to the injury suffered ...." (citing Cook v. State, 940 S.W.2d 623, 637 (Tex Crim App 1997) (Baird, J, concurring & dissenting))).
3. Counts Five and Six
Counts Five and Six of the indictment allege that McCurdy assaulted Lovett with a deadly weapon, namely a "knife or sharp object." McCurdy argues that the evidence is insufficient to support the trial court's deadly weapon findings on these counts. We disagree.
Count Five contains the same allegations as Count Six but additionally alleges that McCurdy committed the assault "as a member of a criminal street gang." See Tex. Penal Code Ann. § 71.02(a).
Counts Five and Six alternatively allege that McCurdy used his "hands and/or feet" as a deadly weapon during his assault on Lovett. Because we find the evidence sufficient to support a finding that McCurdy assaulted Lovett with a "knife or sharp object," we need not address the alternative "hands and/or feet" deadly weapon allegation. See Tex.R.App.P. 47.1.
Relevant to the deadly weapon findings in Counts Five and Six, the record shows that
• McCurdy "normally" had a knife with him and was seen carrying a large knife the night of the attack on Lovett and his friends;
• Johnson died from a stab wound;
• McCurdy stabbed Johnson with his knife;
• McCurdy inadvertently stabbed Bailey multiple times in the arm while he was trying to pull McCurdy away from Johnson, causing Bailey to lose a lot of blood and, despite undergoing two surgeries, to lose the ability to fully open his right hand;
• Lovett identified McCurdy as one of Johnson's attackers;
• Lovett was pushed into the car while Johnson was being attacked and that when he tried to kick the door open, Johnson's attackers "tried to cut . . . or stab" him, and he suffered cuts to his leg.
This evidence supports a reasonable inference that Lovett suffered cuts to his leg from McCurdy's knife during the attack and that McCurdy used-or intended to use-his knife in a manner capable of causing death or serious bodily injury while attacking Lovett. See Tex. Penal Code Ann. § 1.07(a)(17)(B); Hopper, 483 S.W.3d at 239.
McCurdy asserts that he could not have attacked both Johnson and Lovett because Lovett testified that he was on the opposite side of the vehicle from Johnson when he was attacked. But contrary to McCurdy's assertion, Lovett never testified that he was on the opposite side of the vehicle from Johnson; rather, he consistently stated that both he and Johnson were on the passenger side of the vehicle when the attack occurred.
McCurdy also argues that the evidence is insufficient to support the deadly weapon finding because Lovett only suffered minor cuts on his leg. But while a victim's injuries are factors in determining whether an object qualifies as a deadly weapon, see Lane, 151 S.W.3d at 191, the State is not required to show that an object actually caused serious bodily injury to prove that it was used as a deadly weapon, Moore v. State, 520 S.W.3d 906, 908 (Tex. Crim. App. 2017). Rather, the State must only show that "'the manner' in which [the object] was either used or intended to be used was 'capable' of causing death or serious bodily injury." Id. (quoting Tucker v. State, 274 S.W.3d 688, 691 (Tex. Crim. App. 2008)). Here, considering the totality of the evidence and viewing it in the light most favorable to the verdict, we conclude that a factfinder could reasonably infer that McCurdy used his knife in a manner capable of inflicting serious bodily injury or death to assault Lovett.
Accordingly, we overrule McCurdy's second point to the extent it challenges the deadly weapon findings in Counts Five and Six.
C. Point Three: McCurdy Failed to Preserve His Rule 403 Complaint
In his third point, McCurdy primarily complains that the trial court abused its discretion by admitting evidence of the Pagans' ongoing criminal activity in which McCurdy did not participate because this evidence "was designed to mislead the jury and was prejudicial to [McCurdy's] defense." However, McCurdy has failed to preserve this complaint for our review.
In his third point, McCurdy also contends that the trial court abused its discretion by overruling his relevance objection to State's Exhibit 189 (a wide-angle street shot of a motorcycle rally) and Exhibits 190 and 191 (photographs of Hell's Angels support gear). However, because these exhibits were used to show that Johnson was wearing support gear for the Hell's Angels, the Pagans' "biggest enemy," on the night he was killed and how he might have acquired such support gear despite not being a gang member, they are relevant to show both that McCurdy had a motive to murder Johnson and that he was acting "as a member of criminal street gang" in doing so. See Tex. R. Evid. 401; see also Tex. Penal Code Ann. § 71.02(a); Stern v. State, 922 S.W.2d 282, 287 (Tex. App.-Fort Worth 1996, pet. ref'd) ("Motive is not an essential element of a criminal offense, but the prosecution is always entitled to offer evidence of motive to commit the charged offense because it is relevant when it fairly tends to raise an inference that the accused had a motive to commit the crime alleged." (first citing Gosch v. State, 829 S.W.2d 775, 783 (Tex. Crim. App. 1991); and then citing Rodriguez v. State, 486 S.W.2d 355, 358 (Tex. Crim. App. 1972))). Therefore, the trial court properly overruled McCurdy's relevance objection to these exhibits. McCurdy also argues that the trial court erred by overruling his relevance objection to certain evidence of text messages McCurdy sent to Bailey and other Pagan members in February 2021 warning them of a police presence near a Pagan party. However, because this evidence is relevant to show that McCurdy was a Pagan member, we cannot conclude that the trial court abused its discretion by admitting it. See Tex. R. Evid. 401; see also Tex. Penal Code Ann. § 71.02(a); Zuniga, 551 S.W.3d at 735; Villa, 514 S.W.3d at 232.
To preserve a complaint for appellate review, the record must show that a specific and timely objection was made to the trial judge and that the judge ruled on the objection. Tex.R.App.P. 33.1(a); Lovill v. State, 319 S.W.3d 687, 691 (Tex. Crim. App. 2009); Smith v. State, 256 S.W.3d 341, 343 (Tex. App.-San Antonio 2007, no pet.). To satisfy this specificity requirement, "[t]he complaining party must have informed the trial judge what was wanted and why the party was entitled to it." Lovill, 319 S.W.3d at 691. An issue is not preserved "if the legal basis of the complaint raised on appeal varies from the complaint made at trial." Id. at 691-92; see also Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (admonishing that for error to be preserved, the appellant's "point of error on appeal must comport with the objection made at trial").
McCurdy argues that the evidence of the Pagans' ongoing criminal activity should have been excluded on Rule 403 grounds-that is, because its probative value is substantially outweighed by a danger of unfair prejudice or misleading the jury. See Tex. R. Evid. 403. But at trial, McCurdy did not raise a Rule 403 objection to any of the complained-of evidence; rather, he only objected to the evidence's "relevance." A relevance objection is insufficient to preserve a Rule 403 complaint. See Sony v. State, 307 S.W.3d 348, 356 (Tex. App.-San Antonio 2009, no pet.); Lopez v. State, 200 S.W.3d 246, 251 (Tex. App.-Houston [14th Dist.] 2006, pet. ref'd); see also Holt v. State, No. 05-14-00914-CR, 2016 WL 3018793, at *23 (Tex. App.-Dallas May 18, 2016, pet. ref'd) (mem. op., not designated for publication) ("[A] specific 403 objection must be raised to preserve error because a rule 403 objection is not implicitly contained in relevancy or 404(b) objections."). Therefore, McCurdy has not preserved his argument for our review.
Even if McCurdy's third point could be construed as an argument that the trial court abused its discretion by denying his relevance objections to the complained-of evidence, such an argument-though preserved-would nevertheless fail on the merits. Evidence of the Pagans' ongoing criminal activities was relevant to prove an essential element of McCurdy's charged engaging-in-organized-criminal-activity offenses-that the Pagans constitute a "criminal street gang." See Jackson v. State, 314 S.W.3d 118, 127 (Tex. App.-Houston [1st Dist.] 2010, no pet.) ("Evidence showing that members of the gang participated in other criminal activities is relevant, as it helps establish the existence of a 'criminal street gang.'"); Roy v. State, 997 S.W.2d 863, 867 (Tex. App.-Fort Worth 1999, pet. ref'd) (holding that the prosecution was entitled to introduce evidence of "gangs and alleged gang activity not connected to the defendant" to prove that the appellant "intended to participate in [a] shooting as a member of a criminal street gang"); see also Tex. Penal Code Ann. § 71.02(a). Therefore, the trial court did not abuse its discretion by overruling McCurdy's relevance objections.
We overrule McCurdy's third point.
III. Conclusion
Having sustained, in part, McCurdy's second point and having overruled his first and third points, we modify the trial court's judgments on Counts Three and Four to delete the deadly weapon findings and to reflect convictions for the lesser-included offenses of assault causing bodily injury and engaging in organized criminal activity by committing assault and remand this matter to the trial court to conduct a new punishment hearing on Counts Three and Four, but we affirm the trial court's judgments in all other respects.