Beasley v. State, 2-92-236-CR

• Decision Date: 10 November 1993
• Docket Number: No. 2-92-236-CR,2-92-236-CR
• Citation: 864 S.W.2d 808
• Parties: Roosevelt BEASLEY, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 808

864 S.W.2d 808

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

No. 2-92-236-CR.

Court of Appeals of Texas Fort Worth.

Nov. 10, 1993.

David L. Richards, Fort Worth, for appellant.

Tim Curry, Crim. Dist. Atty., Anne E. Swenson, Terri Moore, Asst. Crim. Dist. Attys., Fort Worth, for appellee.

Before HILL, C.J., and WEAVER and DAY, JJ.

OPINION

HILL, Chief Justice.

Roosevelt Beasley was convicted by a jury of the offense of murder. The jury assessed his punishment at life imprisonment in the Texas Department of Criminal Justice, Institutional Division, and a fine of $10,000. Beasley urges in five points of error that the trial court erred: (1) in permitting the State to introduce irrelevant and prejudicial testimony concerning extraneous offenses committed by the Crips gang; (2) in overruling defense counsel's objection to an instance of improper jury argument by the prosecutor; (3) in failing to grant defense counsel's motion for mistrial where a State's witness injected irrelevant and inflammatory testimony, that Beasley dressed like a drug dealer, into the guilt-innocence stage of the trial; and (4) in failing to grant defense counsel's motion for mistrial where a State's witness injected irrelevant and inflammatory testimony, that Beasley dressed in "gang colors," into the guilt-innocence stage of the trial.

We affirm because: (1) 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; (2) Beasley waived error as to the improper jury argument of which he complains, the argument was a proper response to argument by the defense, and we hold beyond a reasonable doubt that the argument, even if improper, did not contribute to Beasley's guilt or to the punishment that he was assessed; and (3) the trial court's instruction to disregard the testimony of which Beasley complains was sufficient to cure any error.

Beasley contends in points of error numbers one and two that the trial court erred in admitting into evidence, at the punishment stage of the trial, testimony concerning extraneous offenses committed by Crips gang members, especially in view of the fact there was no showing that Beasley had knowledge of or had participated in those offenses.

The victim entered into a drug transaction with Beasley because of Beasley's clothing which he observed while they were eating at separate tables in an Arlington restaurant. Those at Beasley's table were wearing jeans and Raiders and Lakers paraphernalia, with blue-colored rags or bandannas hanging out of their pockets. Through other witnesses it was established that Crips is a street gang, and that the gang members identify themselves by their distinctive dress. One witness outlined the dress as blue garb, including blue pants or shirts, or Raiders logos in combination with other blue garb. The witness also mentioned the blue handkerchief or bandanna worn by gang members in their pockets or on their heads. The witness stated that he had observed Beasley wearing such clothing and hanging out with known members of the Crips gang.

A witness testified that the Crips gang has an allegiance for a common goal, and that they engage in violent and criminal activity. He said their purpose is to further a cause, and their cause is violence and criminal activity such as drug trafficking, robberies, and witness intimidation.

After luring his victims to a remote area, observing their money, and showing them what he purported to be a controlled substance, Beasley shot and killed the victim and seriously wounded the victim's companion.

Section 3 of article 37.07 of the Texas Code of Criminal Procedure provides that at the punishment hearing 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. In interpreting this section, the Texas Court of Criminal Appeals has held that evidence is not admissible at the punishment stage unless it is permitted by the Rules of Evidence and, if the evidence sought to be admitted is evidence of an extraneous offense, it satisfies the definition in article 37.07, section 3(a) of "prior criminal record." See Grunsfeld v. State, 843 S.W.2d 521, 523 (Tex.Crim.App.1992). The court has also held that evidence other than prior criminal record, general reputation, and character is admissible. Id. at 524. Additionally, the court has held that family background, religious affiliation, employment history, and the like are appropriate considerations in assessment of punishment. Id. at 524 n. 7; Murphy v. State, 777 S.W.2d 44, 64 (Tex.Crim.App.1988) (opinion on reh'g).

The purpose of the evidence presented is to show Beasley's affiliation with a group, the Crips gang, which is dedicated to crime and violence. It seems reasonable that if evidence of Beasley's religious affiliation is an appropriate consideration in determining his punishment, then his affiliation with a gang dedicated to crime and violence is also an appropriate consideration. We therefore hold that the trial court did not err in allowing evidence of Beasley's affiliation with the Crips gang or evidence of the gang's dedication to crime and violence.

Beasley argues that the evidence is inadmissible because it is an extraneous offense. We first note that the witness in question had twice testified that the Crips' purpose was violence and criminal activity before Beasley interposed any objection on the basis that the testimony constituted an extraneous offense. Because Beasley's extraneous offense objection was untimely, it presents nothing for review. See Hollins v. State, 805 S.W.2d 475, 476 (Tex.Crim.App.1991).

Additionally, we note that the testimony did not go to an extraneous offense, but was only the opinion of the witness as to the general nature and character of the gang. As we have noted, the general character of Beasley's street gang affiliation, as opposed to any specific offense committed by the gang, is admissible at the punishment stage.

Beasley also argues that there was no showing that he was a member of the Crips or that he...