Beasley v. State

• Decision Date: 28 June 1995
• Docket Number: No. 1365-93,1365-93
• Citation: 902 S.W.2d 452
• Parties: Roosevelt BEASLEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 452

902 S.W.2d 452

Roosevelt BEASLEY, Appellant, v. The STATE of Texas, Appellee.

No. 1365-93.

Court of Criminal Appeals of Texas,

En Banc.

June 28, 1995.

David L. Richards (on appeal only), Fort Worth, for appellant.

Tim Curry, Dist. Atty. and Betty Marshall, Charles M. Mallin, Anne E. Swenson and Terri Moore, Asst. Dist. Attys., Robert Huttash, Fort Worth, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

OVERSTREET, Judge.

Appellant was indicted for the felony offense of murder, V.T.C.A. Penal Code, § 19.02(a)(1), alleged to have been committed on or about the 3rd day of February 1990, in Tarrant County. He was found guilty in a trial by jury in the 372nd District Court of Tarrant County on the 13th day of November, 1992. The jury assessed punishment at life imprisonment in the Texas Department of Criminal Justice, Institutional Division, and a fine of $10,000. Appellant's conviction was affirmed by the Fort Worth Court of Appeals on November 10, 1993. Beasley v. State, 864 S.W.2d 808 (Tex.App.--Fort Worth 1993). We granted appellant's petition for discretionary review to decide if evidence of bad conduct generally engaged in by gang members is admissible absent a showing of a connection between such conduct and appellant. ¹

I. SUMMARY OF PERTINENT FACTS

During the guilt/innocence phase of the trial, testimony was given by the victim that he was with the deceased and a third party at Cheddar's Restaurant on February 1, 1990 when appellant entered the restaurant along with another young man, two ladies, and a baby. The victim testified that he and his friends noticed that appellant and his male friend were wearing jeans with a black Raiders cap and a L.A. Lakers jacket. Both men also had blue bandannas hanging out of their back pockets. Subsequently, the deceased and appellant had a conversation and exchanged beeper numbers. Two days later, appellant met the deceased and the victim at a bowling alley, lured the two of them to an isolated area, shot both of them and then took their money. When the police arrived, the victim informed them that he was "shot by some Crips."

During the punishment phase of the trial, the State presented two witnesses who testified about appellant's gang membership. First, the victim testified that while in Cheddar's Restaurant on February 1st, he overheard appellant say to the deceased, "I am a part of the East-something Crips." The remainder of the testimony regarding the gang and gang membership was given by Leo Griego, a police officer from California. Officer Griego testified that he was a police officer from Barstow, California, where appellant had lived before moving to Texas, that he had been a police officer for the past twenty years, and that he had interactions with gangs including Crips for the last fifteen years. Officer Griego further explained that the Crips is a black street gang that has an "allegiance for a common goal, and they engage in violent and criminal activity." He added that specifically, "[t]heir cause is violence, criminal activity such as drug trafficking, robberies, witness intimidation."

Officer Griego explained that one manner in which Crip gang members identify themselves is through their distinguishing clothing. He explained in detail that:

"[t]he Crips are known to wear blue garb, such as blue pants or shirts, tennis shoes, shoelaces, caps with Raider's logo on them, jackets with Raider's logo, black or dark blue shirts, in combination with other blue garb...."

Officer Griego also testified that when the Crips were "Cripped out or dressed out", along with the other blue garb, they would wear blue rags or handkerchiefs on their heads or in their pockets.

Officer Griego testified that he personally knew appellant. He testified that he had seen appellant in the presence of other known Crip members, and that he had seen him wearing the type of gang clothing that he had earlier described. When asked if he knew of appellant's reputation in the community for being a peaceful and law-abiding citizen, officer Griego responded that he did know of his reputation and that it was bad.

II. COURT OF APPEALS' HOLDING

The Second Court of Appeals affirmed the judgment of the trial court holding that the evidence admitted was not evidence of an extraneous offense and was therefore admissible. Beasley v. State, 864 S.W.2d 808 (Tex.App.--Fort Worth 1993). It stated that article 37.07 § 3 of the Texas Code of Criminal Procedure and the Rules of Evidence provide for the admission of evidence by the state or the defendant of anything that the court deems relevant, including the defendant's prior criminal record, his reputation, and his character. Id. at 810. The court of appeals rejected appellant's argument that the evidence was inadmissible because it is evidence of an extraneous offense. The court of appeals first stated that appellant's objection to the evidence being admitted was untimely and went further to explain that the testimony that was objected to was only the witness' opinion of the character and nature of the gang. Id. at 811. The court of appeals likened appellant's affiliation with the gang to one's religious affiliation, and reasoned that the evidence that Beasley was a member of a street gang dedicated to violence and other criminal activity is admissible at the punishment phase of the trial. Id. at 810-811. Lastly, because this evidence's purpose was to show only the general nature of the gang, the court of appeals found that it was unnecessary for the State to link appellant to every single kind of crime that the gang may have engaged in. Id.

III. APPELLANT'S CONTENTION

Appellant claims that the evidence that was admitted regarding the conduct of the gang was all inadmissible. He maintains that the evidence that the State introduced was evidence of unadjudicated extraneous offenses of the gang. According to appellant, the State introduced evidence of these unadjudicated extraneous offenses of the gang so that the jury would consider these acts while assessing his punishment. Because the evidence introduced by the State was unadjudicated extraneous offense evidence, appellant argues that Grunsfeld v. State, 843 S.W.2d 521 (Tex.Cr.App.1992) controls, and consequently, admitting unadjudicated extraneous offense evidence in the punishment phase of a noncapital offense was reversible error.

In the alternative, appellant argues that in the event that this Court finds that the testimony was not unadjudicated offense evidence, the State neglected to demonstrate that appellant was a member of the Crips or that he engaged in, or had knowledge of the criminal activities attributed to the gang. To support this contention, appellant refers to Urbano v. State, 837 S.W.2d 114 (Tex.Cr.App.1992). Furthermore, appellant, citing People v. Smith, 141 Ill.2d 40, 152 Ill.Dec. 218, 565 N.E.2d 900 (1990), contends that being in the presence of gang members is insufficient alone to show that one is a gang member, and in this case, there was no clear evidence presented that appellant actually was a member of the crips gang.

IV. STATE'S CONTENTION

The State's first contention is that this Court should dismiss appellant's petition because appellant has failed to address the court of appeals' holding that appellant's trial objection was untimely. Therefore, the State maintains that appellant is asking this Court to grant an advisory opinion. The State next contends that even if this court does decide the merits of this case, the court of appeals decision should be affirmed because the evidence was not evidence of unadjudicated extraneous offenses and consequently was properly admitted. The State, citing Harris v. State, 738 S.W.2d 207, 224 (Tex.Cr.App.1986), asserts that in order to establish evidence of an extraneous offense, the evidence must demonstrate that an offense was committed and that appellant was connected with the offense. According to the State, the testimony that was given by the witness regarding gang activity was offered not as evidence of specific unadjudicated offenses of the gang or of appellant, but only as the opinion of the witness as to the gang's general nature and character, and is therefore admissible during punishment under Article 37.07, § 3(a).

The State also asserts, citing Miller-El v. State, 782 S.W.2d 892, 895-97 (Tex.Cr.App.1990) and Murphy v. State, 777 S.W.2d 44, 63 (Tex.Cr.App.1988), that the testimony is admissible at the punishment phase as circumstances of the offense or offender. The State argues that this information is extremely relevant and the jury should be given as much relevant information as possible so that they can make the most informed decision possible concerning appellant's punishment. Additionally, it avers that "circumstances of the offender" evidence, which includes evidence of background, education and religious affiliation, is not limited to character evidence, and therefore evidence concerning appellant's gang membership is admissible.

V. ANALYSIS

The record reveals that the objections to the disputed testimony were timely, and accordingly we will address the merits of this case. Article 37.07, § 3(a) of the Code of Criminal Procedure provides that "[r]egardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may, as permitted by the Rules of Evidence, be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including the prior criminal record of the defendant, his general reputation and his character." Therefore, if evidence of the defendant's character or reputation is deemed relevant by the trial court, the evidence is admissible during punishment if it is permitted by the Rules of Evidence. Rule 404(c) of the Texas Rules of Evidence provides that at punishment, "evidence may be offered by an accused or by the prosecution as to the...