Opinion
No. 05-08-00490-CR
Opinion Filed June 16, 2009. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the 282nd Judicial District Court Dallas County, Texas, Trial Court Cause No. F-08-00239-S.
Before Justices MOSELEY, O'NEILL, and MURPHY.
OPINION
Appellant Aaron Ortiz was charged with engaging in organized criminal activity that resulted in the shooting death of Victor Arenas. The jury found him guilty, sentenced him to life imprisonment, and assessed a $10,000 fine. In ten issues, he challenges the legal and factual sufficiency of the evidence regarding (1) self-defense, (2) defense of a third person, (3) whether he was a member of a criminal street gang, and (4) whether he committed murder "with the intent to establish, maintain, or participate as a member of a criminal street gang." He further asserts the trial court committed harmful error by omitting defense of a third person in the jury charge. In his remaining issue, he asserts the trial court erred by denying his motion to quash the indictment because it failed to assert an essential element of the offense. We affirm the trial court's judgment.
Background
In this case, the State presented one version of events on the night in question while the defense presented a completely different version. Because the sufficiency of the evidence is challenged in numerous issues, we provide the following detailed version of the events as presented by both parties, beginning with the State.State's Eye-Witness Testimony
Victor Arenas, the decedent, lived with Sarah Gomez, his aunt. On the evening of March 29, 2006, Sarah Gomez heard a knock on her front door. When she unlocked the door, some men pushed their way inside in an aggressive manner. The men were looking for Victor, but he was not home at the time. One of the men then told her to tell Victor that they were looking for him, and he would know who "they" were. If he did not seek them out soon, the men threatened to return. After the men left, she saw one of them get into a car parked in the back of the alley. When the door opened and the dome light came on, she recognized Claudio Ortiz, Jr. as the driver. She then walked to her sister's house, two doors down, to call Victor. While walking to her sister's house, she saw another car at the end of the street with appellant Aaron Ortiz inside. She recognized him because the Ortiz and Arenas boys had grown up together in the neighborhood. She then called Victor and told him about the events. He arrived three to four minutes later and was angered by the men's behavior at Sarah's house. Victor left the house and that was the last time Sarah saw him alive. Eric Barrientos was a friend of both Victor and Jose Arenas. He was with Victor on March 29 and knew he was upset about someone going to Sarah's house and kicking in the door. Victor said he wanted to go to Claudio, Jr.'s house and "shoot it up." They did not call the police because "they don't deal with the police." He testified Victor then drove his black Cadillac over to the Ortiz house and shot it twice with a shotgun. They then returned home and found Jose and Tony Robles, another friend, at the house. A short time later, the men heard gunshots from the backyard. They all jumped in Tony's truck and headed down Military Parkway toward Victor's older brother Nick Guerra's house. Tony drove, Eric rode in the front passenger seat, and Victor and Jose lay in the bed of the truck. Eric testified no one took guns with them when they left in the truck; however, evidence later showed Victor had a handgun. Eric testified that as they drove down Military Parkway, Tony noticed a car behind them, and he hit the median while looking in the rearview mirror. Eric then saw flashes like someone was shooting at them, and he heard sounds like a rifle. He got hit in the back and arm. When Tony realized Eric was wounded, he drove off towards the Mesquite Community Hospital. Eric did not know anyone else was injured until they got the hospital, and he saw Victor in the bed of the truck "all shot up." Tony testified that as he was driving down Military Parkway and crossing Jim Miller, they passed a car. At first he did not recognize anyone inside, but he later recognized Aaron. He then recalled the back windshield glass shattering, and Eric yelling he had been shot. He raced to the hospital, dropped everyone off, and went home. He did not call the police because he was scared, and he figured they would find him eventually. He admitted to washing down the truck; however, when the police showed up a week later, blood stains were still present but there were no bullet casings. On cross examination, he admitted to being "really drunk" on the night in question. He also admitted there was a rumor going around the neighborhood that Victor shot at the car first as they drove by. He could not, however, confirm the rumor. From his view, when he looked in the rearview mirror, he saw someone standing in the middle of the street holding a big gun. He also testified he later identified Aaron and Claudio, Jr. in a photo lineup as being the two men in the other car. Jose Arenas, Victor's older brother, testified the Arenas and Ortiz boys were friends growing up until problems arose between Victor and Edgar Ortiz. Although there was some insinuation that perhaps a woman caused problems between the families, Jose did not believe that was the case. He was at his aunt's house on March 29 when he received a phone call from Nick saying some guys were giving Victor trouble. He then went to Sarah's house, and Victor told him Edgar Ortiz and Aaron had been passing by the house but would not fight. He did not know anything about a shooting at the Ortiz house, but he was present when a car he recognized as belonging to the Ortiz family slowly drove by, rolled down the window, and shot at them twice. Victor shot back once, and then they ran to Tony's truck and took off. He thought the situation ended with this shooting; however, he was wrong. As their truck drove down Military Parkway, Jose testified he noticed a parked car on the side of the road with its lights off. He recognized it as the Ortiz family car and said Aaron was the driver and Claudio, Jr. was the passenger. The shooting started when they passed the car. He said Aaron pulled out the "AK" or "big gun." He said Victor tried to get up and shoot back, but he got hit in the arm and head. They then drove to the hospital. The police later recovered a bullet from the tire of the Ortiz car, indicating Victor did in fact fire one shot. The Mesquite Police Department tried to gather information from Jose, but he refused to talk. The case was eventually transferred to the Dallas Police Department. Again, Jose refused to talk to the police. He eventually opened up about the events and identified both Aaron and Claudio, Jr. in a photo lineup. On cross examination, the defense attempted to discredit Jose and make him appear as a liar. The defense focused on the fact that Jose first told police in his interview that the passenger in the car was an older man in his thirties, which did not match Claudio, Jr.'s description. Jose also vacillated on some testimony by stating he could not remember who Victor said was messing with him on the night in question, and he could not say for sure whether he recognized Aaron in the car that night or simply recognized the car as belonging to the Ortiz family and assumed he was in it.State's Physical Evidence
The State presented the testimony of several witnesses regarding the physical evidence of the case. Paul Ellzey, lead detective from the Dallas Police Department, testified that he interviewed Sarah, Jose, Tony, and Eric. Sarah provided information on what prompted the murder. Eric told him he was hit with an AK-47 fired by Aaron. Through his interviews and further investigation, Detective Ellzey determined Victor discharged his weapon in self-defense causing the front left tire to go flat. The Ortiz car was later found at Aaron's parents' house, and the bullet was removed from the tire. He also recovered a .45 caliber automatic pistol and an AK-47 rifle from the Ortiz residence; however, the AK-47 rifle was not the same weapon used to kill Victor. An inspection of Tony's car revealed the back windshield was completely shattered and the inside of the cab was shot up. There were also numerous bullet holes in the rear tailgate indicating the shots were fired from behind the truck as the truck was heading away from whoever was firing. Based on interviews and physical evidence, he determined Aaron was the shooter. On cross examination, Detective Ellzey admitted he did not find any evidence in broad daylight on March 30, 2006 at the scene of the shooting on Military Parkway. However, he went back on the evening of April 5, 2006 and recovered several shell casings. He explained that because the casings are green, it is often hard to see them in daylight in the grass. At night, however, the green colored brass reflects, and they are easier to spot. He admitted the police never recovered Victor's gun, despite looking for it for days, and determined it fell out of the truck. Dr. Lynn Salzberger, a medical examiner, testified about her findings after performing Victor's autopsy. She determined he received eight gunshot wounds, but she could not determine the range of fire. Based on the extensive injuries and bullet wounds, Dr. Salzberger concluded the cause of death was multiple gunshot wounds and declared it a homicide. She also testified Victor's toxicology screen revealed marijuana in his system. Vicki Hall, a trace evidence examiner, analyzed gunshot residue kits from Jose and Victor to determine whether they had fired a gun or been close to someone else discharging a firearm. She found one primer gunshot residue particle on the back of Victor's left hand, but no primer particles on the back of his right hand. She testified that this indicated he was around a discharging firearm, whether he fired the weapon himself or had his hand close to the weapon at the time someone else discharged it. She did not find any trace particles from Jose's kit. She also found traces of lead particulate on Victor's t-shirt; however, she could not calculate distance of the shots because an interpose target, the truck, blocked residue from reaching the shirt. But, she still believed none of the shots were fired from close range or within a foot of Victor. Charles Clow, a firearms tool mark examiner, conducted the mechanical evaluation and test firing of the firearms in question, which included the .45 pistol and AK-47 rifle recovered from the Ortiz residence. He studied numerous steel jackets, lead fragments, cartridge cases, and bullets. He positively identified a bullet from the autopsy and a bullet fragment from the scene as being fired from the same gun. He stated that the bullets had the same class characteristics as the ones he test-fired from the AK-47 submitted to him from the Ortiz house, but he could not say for sure that they were fired from the murder weapon because the bullets were missing certain individual characteristics and he did not have the actual weapon for comparison. He also identified cartridge cases as being fired from the same gun, and based on his experience, they were consistent with having been fired from an AK-type firearm. He further stated the bullet retrieved from the tire of the Ortiz car was consistent with a .357 handgun; however, he did not have anything to compare it to for positive identification because the police never recovered Victor's gun.State's Street Gang Evidence
The State indicted Aaron for murder as a member of a criminal street gang. It presented several witnesses in support of its contention that Aaron was a member of the East Side Home Boys (ESHB), a criminal street gang that has existed in Dallas since the late eighties or early nineties. The gang originated in old east Dallas off the streets of the Woodrow Wilson area. They have since splintered into groups in other parts of Dallas and the suburbs of Garland, Mesquite, and Irving. ESHB have over seven hundred identified members in the Dallas police gang files. Officer Darian Loera, with the Dallas Police Department Gang Unit, explained that a gang-related offense is an offense in which the suspect and the victim are both gang members. They could be members of the same gang or different gangs. He confirmed that many times conflicts arise within the same gang, but gang members usually do not call the police. They rather handle the problems themselves. He explained to the jury that a person had to meet certain criteria to be considered a gang member for purposes of the police data base. A person must meet at least two of the following criteria: admitting gang membership, wearing known gang colors, flashing gang hand signs, associating with other gang members, or hanging out in a known area where gangs are known to frequent. ESHB's gang color is blue, and its members are known to wear it proudly. They also have a specific hand sign. Its members are known for committing crimes ranging from simple theft to murder. Between 2006 and 2007, police conducted approximately one hundred criminal investigations involving the ESHB. He testified that although many gang members have tattoos, the absence of a tattoo does not mean a person is not a gang member. If a person hangs out with other members and commits offenses with other gang members, they meet the criteria for gang membership. Officer Loera testified that Luis Sandoval, Aaron's cousin, was an admitted ESHB member. The State further offered pictures of him displaying the hand sign and wearing a blue t-shirt. He also has been involved in offenses with other members. Officer Loera further testified that Claudio, Jr. associated with well-known ESHB members (including his family) and has been involved in offenses with other members. He asserted that Jose Arenas had a prior history of gang affiliation, and Victor Arenas and Eric Barrientos were known members. As far as he knew, Tony Robles was not an ESHB member. The State admitted a picture showing Aaron posing with others in gang colors, but the picture was ten years old. Officer Loera stated he believed Aaron has an ESHB member based on his prior offenses, his admitted gang membership to Officer Smith in 2003, and his familial relationship with other known gang members, as ESHB is considered a multi-generational gang. He admitted on cross examination that although sometimes non-gang members hang out with gang members, he does not believe in "false positives" for gang membership. He also disagreed with defense counsel's insinuation that officers routinely "over-identify" gang members in an attempt to justify officer over time and larger budgets. He admitted Aaron had no ESHB tattoos and that no gang paraphernalia was recovered from his parents' house; however, this alone did not mean he was not in the gang. Aaron's card on file with the police indicated he was an ESHB member at the time of the shooting. Officer Loera testified he believed in the old adage "once a gang member always a gang member" and disagreed with defense counsel that most people "age out" of a gang between eighteen and twenty years of age. He also disagreed that the average length of gang membership was one year. However, he did acknowledge that studies show when a person joins a gang, his participation in violent offenses usually increased, and he could not cite any offenses for Aaron between July 2003 and March 2006. Despite defense counsel's attempt to paint Aaron as coming from a stable home, with involved parents, Officer Loera explained gang members often live double lives. He disagreed with the defense that the relationship of the parties involved made it a domestic issue. He believed the offense was in furtherance of gang activity because Aaron and Victor were both ESHB members, and the shooting was the result of a dispute within the gang. Officer Noah Smith, also with the Dallas Police Department Gang Unit, testified the ESHB are known to be a violent gang who handle their problems with individuals by drive-by shootings. He further noted if someone in a gang engages in this behavior, then they are engaging in gang-related activities. He explained ESHB members with internal conflicts engage in tit-for-tat behavior and go back and forth as the situation escalates. This was further corroborated by Eric Barrientos's and Jose Arenans's testimony. When asked if the gang handles things on their own instead of calling the police, Eric replied, "I guess you could say that." Jose also testified that when problems came up, they solved it themselves either with "fist fights or guns." Officer Smith had contact with Aaron on June 3, 2003 when he pulled him over for a traffic violation in a known ESHB neighborhood, and his passengers were known ESHB members. Aaron admitted to his ESHB membership and threw a gang sign. He stated Aaron did not have to admit any gang affiliation, and it is not normal to throw a gang sign unless one is a member of that gang. Based on his training and experience, Officer Smith testified he believed Aaron is a current member of the gang. Finally, during Sarah Gomez's testimony, she stated she had heard that all the men involved were gang members, but did not know for sure.Defense Eye-Witness Testimony
The defense presented a completely different version of the events on March 29 and March 30, 2006. It contended the shooting resulted from a long-standing grudge between Nick and Claudio, Jr. over Nick's former girlfriend Marisol. It further argued Aaron shot in self-defense after Victor fired first on them. Claudio, Sr. testified the family problems began when Marisol and Nick separated, and Marisol started dating Claudio, Jr. He claimed drive-by shootings started happening at his home during this time. The first drive-by occurred on March 19, 2004 and was followed by another shooting on April 10, 2004. Two more shootings happened later; however, he could not provide specific dates. After each shooting, the family called the police and made a report. Despite their suspicions that the Arenas family was involved, the police said they needed further evidence and information to continue with the investigation. The Ortiz family eventually moved from the area for their safety. At approximately 1:20 a.m. on March 30, 2006, he said the family was asleep when they again heard gunshots outside their house. He went outside to investigate, but the shooters were already gone. He noticed someone across the road at the Blockbuster and decided to see if he had seen anything. Aaron drove, Claudio, Sr. was the front passenger, and Luis Sandoval was in the back. At the time, Claudio, Sr. was armed with a .45 caliber automatic pistol. The parking lot security guard told them he saw a white truck drive away from the area. The Ortiz men then went looking for the white truck. They first went to Nick's aunt's house, but they did not see the truck. They then went to Sarah's house, and as they drove by the front, shots fired towards them. They could not, however, see who was shooting. Claudio, Sr. testified he did not shoot back. They then drove around to the back alley, and they saw a white truck parked with the doors open. Again, shots rang out towards them, and he told Aaron they needed to leave immediately because "they could kill us here right now." Aaron then drove to his mother-in-law's house because he kept an AK-47 there, and it would insure their safety on the way home. They proceeded to Military Parkway to go home. Claudio, Sr. noticed lights coming up behind them, and a white truck passed them. The truck hit the median, got in front of them, and then started coming at them in reverse. He saw two people stand up in the bed of the truck. He identified them as Victor and Jose. He said he then opened his door and got out and asked "What is the problem? What do you have?" And then Victor started shooting at them. He testified he ducked underneath the seat, and Aaron returned fire with the AK-47. He said they were still being shot at as the truck drove away. They tried to drive away, but the front tire was flat. They made it as far as a nearby parking lot where they left the car and then proceeded to walk to his brother's house. His brother then gave them a ride back to Claudio, Jr.'s apartment. The police went to the Ortiz home the next day. Claudio, Sr. gave them his pistol and a rifle. This AK-47 rifle, however, was not the same one used the night before. He claimed the rifle used must have been left in the car because he never saw it again. He further asserted Aaron was with the family for the entire evening of March 29 and March 30 and therefore could not have been at Sarah's house earlier in the evening. He further stated the police never asked him for a statement. In fact, the first time he shared his side of the story was while on the stand during trial. Luis testified to the same facts and further stated Aaron shot back in defense. The one detail he added was that in addition to Victor shooting at them, the passenger in the cab, which was Eric Barrientos, fired three or four shots at them too. He also claimed he and Aaron were at home the entire evening of March 29. On cross examination, Luis testified he was not an ESHB member despite being listed as an associate. He admitted to Officer Ellzey they were stupid for leaving and going after people they knew were armed. He further admitted that even though he claimed Claudio, Jr. was not involved in the incident and he knew the police arrested him, he never said anything to police until much later. Rene Varela, the grandmother to Aaron's children, confirmed that Aaron stopped by her home early in the morning on March 30 to retrieve the AK-47 rifle. Stephanie Varela, the mother of Aaron's children, testified Aaron was with her that entire evening and could not have been a part of the group that went to Sarah's home. She also stated she knew problems existed with the Ortiz and Arenas families, but did not know the source of the problems. Gina Tyler, a registered nurse at Mesquite Community Hospital, testified about the contents of a hospital surveillance video from March 30. She told the jury about a man seen on the video pacing back and forth, who never offered to help as medical staff pulled Victor from the truck. However, as soon as they removed Victor, the man jumped into the truck and sped off so quickly he left tire marks. She never knew the person's name; however, the defense insinuated that it was Nick who drove the truck away, rather than Tony, in an attempt to get rid of evidence. The last witness for the defense was Aaron himself. Aaron gave the same story as his father regarding the problems between the two families involving Marisol, the gunshots outside his family's house, the men talking to the security guard, and the group eventually going to Sarah's home where they saw a white truck and were fired upon by people they could not see. He said he stopped to pick up the AK-47 rifle because he did not feel safe. They did not stay at the home because he did not want the Arenas boys to see his car out front and have a reason to shoot at Rene's home. He then gave the exact same story as Claudio, Sr. regarding their encounter with the white truck on Military Parkway. He recognized Victor when he stood up in the bed of the truck, but he said as soon as Victor started shooting, the second person in the truck got down. He admitted he grabbed the AK-47 from Luis and started firing back. He testified Victor shot three or four times, and he returned five or six shots. He then claimed Eric started shooting at them as the car drove away so he again returned approximately four shots. Similar to the other defense witnesses, he said the car tire went flat so they left the car in a parking lot and got a ride home. He said he spent the whole night in the garage "just thinking," but he never went to the police with information regarding the white truck or the shooting. When the police later talked to him, he originally claimed he was not involved in the shooting. He claimed that despite the confusion regarding whether his brother or father was in the car with him during the shooting, he told the police it was not his brother. While talking to the police, he also removed his shirt to prove he did not have any gang-related tattoos, and he also denied membership in the ESHB. He further denied going to Sarah's home earlier in the evening or that the shooting was gang-related. On cross-examination, he admitted to buying another AK-47 rifle on March 29, 2006, and this was a different rifle from the one he kept at Rene's home. He claimed the State's picture of him years ago in ESHB colors with others associated with the gang was simply a picture of friends and that none of them were in a gang. He knew Claudio, Jr. had Tango Blast tattoos but since he had never been in prison, he claimed Claudio was a "wannabe." He also claimed he was forced by Detective Smith to admit he was in ESHB, even though he was not a member.Defense Street Gang Expert
Bruce Jacobs testified as a defense expert regarding street gangs. The purpose of his testimony was to establish that Aaron was not an ESHB member and the shooting was not gang-related. He reviewed the police report, witness statements, gang file documentation, and conducted an "in-depth life history with Aaron himself," which was actually only a one to two hour interview. Based on his field research, he stated a person who hangs out with gang members is not necessarily a member. He also testified ninety-five percent of all at-risk youth who live in gang neighborhoods do not become gang members and further claimed that if they do, membership is fleeting. He also told the jury most usually "age out" of the gang between the ages of eighteen and twenty. When deciding whether Aaron was an ESHB member, Jacobs said he focused on two broad sets of risk factors, which included background and proximate risk. He then narrowed the two broad sets as follows:(1) Does Aaron come from a single-parent household?
(2) Has Aaron experienced any negative life events like divorce or parental unemployment?
(3) Does Aaron perceive any barriers to success in life such as economics or otherwise?
(4) Does Aaron have significant outside interests that would insulate him from a gang?
(5) Does Aaron have legitimate employment?
(6) Does Aaron suffer from any psychological risk factors?He determined Aaron came from a close-knit family who routinely ate dinner together and attended church on Sunday. He was required to first do his homework and chores and then he received rewards. He did not suffer from any negative life events or perceive any barriers to success. Aaron was involved in significant outside activities including football, basketball, landscaping, and working on cars. He also had legitimate employment. He did not suffer from any psychological risk factors but instead appeared to be well-adjusted and integrated. Jacobs also stated criminal activity usually skyrockets once a person joins a gang; however, nothing in Aaron's record indicated an increase in activity after June 2003. He also claimed nothing in the file indicated the shooting was gang-related because it had nothing to do with enhancing a gang's mission or goals. Rather, he believed it should be classified as a domestic dispute or family feud. On cross-examination, Jacobs admitted he never had been on a ride along with anyone in the Dallas Police Department Gang Unit, but rather formulated his opinions based on his own independent research. He could not provide the names of any ESHB members that he talked to or any information they provided regarding the gang. He also could not cite any instances of the Dallas police over-identifying gang members despite his assertion that the police tend to be over-inclusive when they label someone a gang member. He further admitted the police gang unit's participation in the investigation most likely indicated there was some gang element to the shooting. And finally, he acknowledged that Hispanic gangs have increased in recent years and problems seem to be starting in the suburbs. He would not agree with the State, however, that the suburban increase most likely included individuals from stable homes. At the conclusion of all the evidence and jury deliberation, the jury found Aaron guilty. The jury assessed punishment at life imprisonment and a $10,000 fine.
Motion to Quash Indictment
In his first issue, Aaron contends the trial court erred in denying his motion to quash the indictment because it failed to assert an essential element of the offense. Specifically, he argues the indictment did not state he committed murder with "intent to establish, maintain, or participate . . . as a member of a criminal street gang." Tex. Penal Code Ann. § 71.02(a)(1) (Vernon Supp. 2008). Instead, it states he "did then and there commit the aforesaid offense as a member of a criminal street gang." The State responds Aaron failed to preserve his complaint for review; however, if the complaint is preserved, then he failed to establish he was harmed by the omission. When reviewing a trial court's decision to deny a motion to quash an indictment, we apply a de novo standard of review. Lawrence v. State, 240 S.W.3d 912, 915 (Tex.Crim.App. 2007); State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App. 2004) (noting when decision is based on motion to quash, indictment, and arguments of counsel, trial court is in no better position than the appellate court to decide the issue; therefore, a de novo review is appropriate). In his motion to quash, Aaron argued that despite the State charging him under section 71.02 of the penal code, the indictment was deficient in its notice as to any nexus between his alleged membership in a criminal street gang and the alleged commission of the offense. Because of the failure to include this nexus, the indictment lacked specificity and was vague, indefinite, uncertain, and overbroad. On appeal, he framed his issue as "the indictment is insufficient as a matter of law because it fails to allege an essential element of the offense; hence, the trial court erroneously denied Appellant's motion to quash the indictment." We conclude Aaron has failed to preserve this issue for review. To raise an issue on appeal, the issue must have been presented first to the trial court. Tex. R. App. P. 33.1. The code of criminal procedure further states the following:If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits his right to object to the defect, error, or irregularity and he may not raise the objection on appeal. . . .Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005). His motion to quash did not inform the trial court that the indictment failed to allege an element of the offense or that an element was in fact missing. Rather, he generally complained the lack of nexus between his alleged gang membership and the alleged crime resulted in the indictment failing to give him notice and was vague, uncertain, and overbroad. This was not sufficient to put the trial court on notice that his true complaint was about an alleged missing element of the offense. As such, the trial court did not err in denying his motion to quash. Even if we determined his issue was preserved for review, Aaron would still not prevail. The right to notice is set forth in both the United States Constitution and the Texas Constitution. See U.S. Const. amend. VI; Tex. Const. art. I, § 10. In addition, the Texas Code of Criminal Procedure provides guidelines relating to the sufficiency of the indictment. See Tex. Code Crim. Proc. Ann. arts. 21.03, 21.04, and 21.11 (Vernon 2009). Thus, the indictment must be specific enough to inform a defendant of the nature of the accusations against him so he may prepare a defense. Moff, 154 S.W.3d at 601. However, the due process requirement may be satisfied by means other than the language in the charging instrument. Kellar v. State, 108 S.W.3d 311, 313 (Tex.Crim.App. 2003); Smith v. State, AP-75479, 2009 WL 1212500, *3 (Tex.Crim.App. May 6, 2009). When a motion to quash is overruled, a defendant suffers no harm unless he did not, in fact, receive notice of the State's theory against which he would have to defend. Smith, 2009 WL 1212500 at *3; see also Tex. Code Crim. Proc. Ann. art. 21.19 (Vernon 2009) ("An indictment shall not be held insufficient, nor shall the trial judgment or other proceedings thereon be affected, by reason of any defect of form which does not prejudice the substantial rights of the defendant."). A complaint that an indictment does not provide adequate notice alleges a defect in form. Olurebi v. State, 870 S.W.2d 58, 61 (Tex.Crim.App. 1994); Hodge v. State, 756 S.W.2d 353, 357 (Tex.App.-Dallas 1988, no pet.). In his indictment, Aaron challenged notice under article one, section ten of the Texas Constitution. He specifically stated "the indictment is insufficient as a matter of law because it does not comply with Article One, Section 10 of the Texas Constitution in that it does not notify the Defendant of the nature of such a nexus." Thus, we apply the article 21.19 harm analysis as instructed by Adams v. State, 707 S.W.2d 900, 903 (Tex.Crim.App. 1986). The important question is whether Aaron had adequate notice to prepare his defense. Id. The first step in answering this question is to decide whether the charging instrument failed to convey some requisite item of notice. Id. If sufficient notice is given, this ends our inquiry. If not, the next step is to decide whether, in the context of the case, this had an impact on Aaron's ability to prepare a defense, and finally, how great an impact. Id. In making this determination, we consider the entire record. Hodge, 756 S.W.2d at 357. Further, to be entitled to reversal based on trial error in overruling his motion to quash, Aaron must affirmatively show harm. Id. Under the first Adams step, we conclude Aaron received sufficient notice of the offense against him. The indictment alleged he intentionally and knowingly caused the death of Victor by shooting him with a deadly weapon, and he committed the offense as a member of a criminal street gang. This sufficiently put him on notice that the State was charging him under penal code section 71.02. In his motion to quash, he admitted as much by stating "in the instant indictment the Defendant is charged with the offense of Engaging in Organized Criminal Activity" and then proceeded to quote Texas Penal Code section 71.02, which sets forth the offense. Thus, there is no question he knew exactly what charges the State brought against him. Further, even if we concluded he did not receive sufficient notice in the indictment, he has failed to bring forth any evidence showing how the lack of notice affected his ability to adequately prepare his defense. He must come forward with "some factual justification other than the meagerness of the specifications which do not appear in the indictment." Hodge, 756 S.W.2d at 357. This he failed to do. Furthermore, as part of his defense, his hired expert testified at length to the reasons he believed Aaron was not a member of a street gang and that the events on the night in question were not committed with the intent to establish, maintain, or participate as a member of a criminal street gang. Therefore, the record shows he was able to present his defense to the jury. Thus, no harm has been shown requiring reversal. He overrule Aaron's first issue.