Anderson v. State
| Decision Date | 28 June 1995 |
| Docket Number | No. 0178-94,0178-94 |
| Parties | Omar ANDERSON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Mary B. Thornton, Fort Worth, for appellant.
Tim Curry, Dist. Atty., and Betty Marshall, David M. Curl, Charles M. Mallin, Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Appellant was indicted for the felony offense of murder, pursuant to Texas Penal Code § 19.02(a)(1) (Vernon 1989), alleged to have been committed on or about October 15, 1991, in Tarrant County. In the 213th Judicial District Court of Tarrant County, the jury found appellant guilty and assessed life imprisonment in the Institutional Division of the Texas Department of Criminal Justice on October 16, 1992. Appellant's conviction was affirmed by the Fort Worth Court of appeals. Anderson v. State, 868 S.W.2d 915 (Tex.App.--Fort Worth 1994).
We granted appellant's petition for discretionary review to determine whether the court of appeals erred in holding that the State pursuant to Tex.Crim.Proc.Code Ann. art. 37.07 (Vernon 1993) can elicit testimony during the punishment phase of the trial concerning appellant's membership in a gang. 1
During the punishment phase of the trial, the State called Officer Ferguson, a police officer, to testify. Officer Ferguson testified to having personal knowledge of appellant's membership in a gang called the "Canine Posse." The police officer further testified that the purpose of the gang was to distribute narcotics in the Caville apartment complex. The testimony of the police officer is as follows:
PROSECUTOR:
Q. And in your capacity as a patrolman on the east side of Fort Worth, did you have occasion to come into contact with [a] gang that call[s] themselves the Canine Posse?
A. Yes, ma'am.
Q. Okay. Can you tell us, what is the Canine Posse?
A. The Canine Posse is a gang that just--young individuals, mostly black, that originated in the Caville Apartments which is government housing and their assignments were to distribute narcotics in the complex.
. . . . .
Q. Officer Ferguson, you say they are a gang and their responsibilities are to carry out narcotics distribution. Is that right?
Q. Do you have personal knowledge of that, Officer Ferguson?
A. Yes.
Q. Is that the Canine Posse's purpose?
A. Yes, ma'am.
Q. Do you know an individual named Omar Anderson?
A. Yes, ma'am.
Q. Do you see Omar Anderson in the courtroom today?
A. Yes, ma'am.
. . . . .
Q. Officer Ferguson, do you know whether or not Omar Anderson was a member of the Canine Posse gang?
Q. The question is, do you know?
A. Yes, ma'am.
Q. Do you have personal knowledge?
A. Yes, ma'am.
Q. And how is it that you know Omar Anderson is a member of the Canine Posse?
A. It all started at the Caville Apartments. I normally walked that beat a lot and I got to meet several of the gang members. And I also had several confrontations with Omar Anderson.
Q. And so, while walking the beat out there in the projects, you came across other known gang members?
A. Yes, ma'am.
Q. And was Omar Anderson ever in their company?
A. Yes, ma'am.
Q. How else would you know that Omar Anderson was a member and running with the Canine Posse gang?
A. Okay. The Canine Posse boys wore Canine Posse tee shirts which were white tee shirts with Canine Posse written on the back and Omar had one on.
Appellant took the stand sometime after Officer Ferguson's testimony had been admitted into evidence. Although appellant admitted hanging out with members of the Canine Posse, he denied any gang membership. Additionally, he refuted Officer Ferguson's characterization of the gang; instead, he compared the gang to some sort of social club.
Other relevant facts from the punishment phase include reputation testimony from five State witnesses who testified that appellant had a bad reputation for "being a peaceful and law-abiding citizen."
The Fort Worth Court of Appeals affirmed appellant's conviction in a published opinion on January 12, 1994. The court of appeals relied on the analysis of the Ybarra court and held that membership in a gang is not necessarily evidence of an extraneous offense; it may be introduced as evidence of reputation or character during the punishment phase of the trial court if the trial court deems it is relevant to sentencing. Anderson v. State, 868 S.W.2d 915 (Tex.App.--Fort Worth 1994). In Ybarra, the Waco Court of Appeals held that reputation of gang membership gives the jury valuable information regarding the character of the defendant and should be allowed. Ybarra v. State, 775 S.W.2d 409 (Tex.App.--Waco 1989).
Appellant contends that the trial court admitted inadmissable evidence when it permitted the State to elicit testimony of appellant being in the "Canine Posse" gang whose purpose is to distribute narcotics. According to appellant, this is not permissible punishment evidence pursuant to Tex.Code Crim.Proc.Ann. Art. 37.07 § 3(a) (Vernon Supp.1989) and the Texas Rules of Criminal Evidence, Rules 404 and 405.
Appellant characterizes the testimony in question as inadmissable evidence of unadjudicated extraneous offenses. The introduction of this testimony, according to appellant, allowed the jury to infer that the gang's activities were also those of the appellant. He asserts that such an inference should not be allowed because it "clearly implies that appellant as a 'Canine Posse' gang member was guilty of numerous felony offenses involving the delivery of illegal narcotics." Therefore, appellant insists that the police officer testified to specific instances of conduct which are not permitted here under Rule 405 of the Texas Rules of Criminal Evidence. Specific instances of conduct are only allowed when character or a trait of character is an essential element.
In accordance with Rule 405, the permissible method of character evidence would have been reputation or opinion testimony. It is appellant's contention that this particular testimony goes beyond the scope of proper reputation testimony because it is not limited to whether appellant's reputation for being a peaceable and law abiding citizen was good or bad.
It is further contended by appellant that such an inference is not harmless error because although appellant was eligible for probation, he received the maximum sentence in this case of Life Imprisonment.
The State refers to the objected-to testimony as being "circumstances of the offender" that are relevant to the punishment issues. 2 According to the State, gang affiliation, like any other affiliation of the appellant's, is relevant and should not be prohibited just because it is not mitigating. An additional argument for the allowance of aggravating factors suggests that appellant, at some point, "opened the door" to the objected-to testimony.
In rebuttal of appellant's characterization of the testimony, the State contends that appellant did not adequately show that the objected-to testimony was evidence of extraneous offenses. Additionally, it is "faulty logic," according to the State, to make the inference that appellant committed extraneous offenses just because the gang engages in certain activities. The State, citing Harris v. State, 827 S.W.2d 949 (Tex.Cr.App.1992), further suggested that even if the testimony could be considered to include unadjudicated extraneous offenses, the testimony should not be excluded as evidence since it does not refer to a specific offense. The mere suggestion of a possibility of an extraneous offense would not be enough. Roach v. State, 586 S.W.2d 866 (Tex.Cr.App.1979).
In the alternative, if the testimony is construed as referring to extraneous offenses or specific instances of conduct, the State argues that it should be allowed under Rules 404(c) and 405(b) of the Texas Rules of Criminal Evidence. The State insists that "the [Appellant's] character is always in issue at punishment under Rule 404(c) and thus under 405(b), specific acts are admissible to show character." More specifically, the character traits for rehabilitation capacity and future dangerousness are at issue; therefore specific acts are permitted.
Lastly, the State argues that any error found would only be harmless. Even without the objected-to testimony, a jury could have easily reached the same decision on punishment based on the additional overwhelming evidence that was admitted. See Harris v. State, 790 S.W.2d 568 (Tex.Cr.App.1989).
In order to address the issue, we must look to Art. 37.07 § 3(a) of the Code of Criminal Procedure, and Rule 404(c) of the Texas Rules of Criminal Evidence. Article 37.07 § 3(a) of the 1989 amendment, states that evidence, so long as it is permissible under the Rules of Evidence, may be offered as to "any matter the court deems relevant to sentencing, including the prior criminal record of the defendant, his general reputation and his character." Additionally, Rule 404(c) of the Texas Rules of Criminal evidence provides in part that during the penalty phase of a trial, "evidence of a defendant's character may be offered by an accused or by the prosecution." Taking both of these rules into consideration, we must now determine whether the court of appeals erred in holding that the State could elicit the complained of testimony because it was relevant and its probative value outweighed any unfair prejudice to appellant.
The Tenth Court of Appeals held that evidence of gang...
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