Gallegos v. State
| Docket Number | 08-23-00032-CR |
| Decision Date | 23 August 2023 |
| Parties | MANUEL GALLEGOS, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Do Not Publish
Appeal from the 34th Judicial District Court of El Paso County Texas (TC# 20190D00200)
Before Rodriguez, C.J., Palafox, J., Soto, J.
A jury found Appellant Manuel Gallegos guilty of one count of Engaging in Organized Criminal Activity and sentenced him to one year in the State Jail Division of TDCJ. In his sole issue on appeal, Gallegos contends the trial court erred in determining that a State witness was qualified to provide reliable expert witness testimony, and the admission of his testimony violated Rule 702 of the Texas Rules of Evidence. For the reasons set forth below, we affirm the trial court's judgment.
The facts in this case stem from a deadly confrontation in July 2017 between two motorcycle clubs, the Bandidos and the Kinfolk, [1] at the Mulligan's Chopped Hog Bar (Mulligan's) in El Paso. The confrontation resulted in the death of the president of the El Paso Chapter of the Bandidos, Juan Martinez; serious injuries to two other Bandidos members, Ballardo Salcido and David Villalobos; and serious injuries to a member of a Bandidos "support" club, Juan Vega-Rivera.
According to the State's theory, Appellant, who was an admitted member of one of El Paso's two Kinfolk chapters and a former member of the Bandidos, initiated the confrontation as part of a plan to murder Martinez.[2] The State theorized that Appellant and Juan Mercado, another Kinfolk member, entered Mulligan's, which was known to be frequented by Bandidos members, with the intent of instigating a fight with the Bandidos to allow Javier Gonzalez, the vice president of the other Kinfolk chapter, to enter the bar and shoot Martinez while claiming he was acting in self-defense, defense of others, or both.
Much of the confrontation was captured on the bar's surveillance video. The video revealed that Appellant entered the bar first, followed by Mercado. At the time, Mercado was wearing a Kinfolk vest, while Appellant was wearing a t-shirt with Kinfolk "information" on it. Once inside the bar Appellant spoke with Martinez, with whom Appellant had a long-time friendship, but after a short discussion not captured on the video (given its lack of audio), Appellant admittedly struck Martinez in the face. Several members of the Bandidos then attacked Appellant, knocking him to the floor. While Mercado was attempting to assist Gallegos Gonzalez entered the bar followed by other Kinfolk members and began shooting, killing Martinez and seriously wounding Salcido, Villalobos, and Vega-Rivera.
Gonzalez was arrested and convicted of one count of Engaging in Organized Criminal Activity-Murder, with respect to Martinez's killing, and three counts of Engaging in Organized Criminal Activity-Aggravated Assault, with respect to the three other injured individuals. See Gonzalez v. State, No. 08-19-00062-CR, 2020 WL 7585890, at *1 (Tex. App.-El Paso Dec. 22, 2020, no pet.) (not designated for publication). We upheld Gonzalez's conviction against his claims that there was insufficient evidence to establish his intent, that the jury had no rational basis for rejecting his claims of self-defense and defense of others, and that he was denied the effective assistance of counsel. Id. at *10.
Appellant was similarly indicted for one count of engaging in organized criminal activity arising out of Martinez's murder (Count I), one count of engaging in organized criminal activity arising out of the assault of Martinez (Count II), and three other counts of engaging in organized criminal activity arising out of the aggravated assaults of Salcido (Count III), Villalobos (Count IV), and Vega-Rivera (Count V).[3] To establish Appellant was engaging in organized criminal activity, the State was required to establish that the Kinfolk Motorcycle Club was a "criminal street gang" and that Appellant was acting in furtherance of the gang at that time. See Tex. Penal Code Ann. § 71.02(a) (); see also Zuniga v. State, 551 S.W.3d 729, 735-36 (Te x . Crim. App. 2018) (recognizing that the State has the burden of proving the defendant committed the underlying offense while acting "as a member of a criminal street gang" to establish a violation of Penal Code § 71.02). And in turn, a "criminal street gang" is statutorily defined as "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." Tex. Penal Code Ann. § 71.01(d).
At trial, Appellant did not deny he assaulted Martinez or deny he was a Kinfolk member at the time. Instead, he raised two primary defensive theories. First, he argued he was not acting in his capacity as a Kinfolk member at the time of the confrontation and was not acting in furtherance of any plot to kill Martinez. According to Appellant, he went to Mulligan's of his own accord after leaving another bar where he had been drinking with Mercado, Gonzalez, and other Kinfolk members, and Mercado was following him out of concern for Appellant's safety because he was drunk. As well, he acknowledged that Mercado called Gonzalez before entering the bar but claimed Mercado did so because he was concerned trouble might be inside the establishment after he observed the number of Bandidos motorcycles parked outside. Appellant admitted that a fight broke out after he and Mercado entered the bar and that he struck Martinez in the face, but he claimed it was simply an act of poor judgment, not part of a plan to murder Martinez.
Second, Appellant argued that-unlike the Bandidos-the Kinfolk Motorcycle Club was not a "criminal street gang" within the meaning of the Penal Code, and therefore, he could not be convicted of engaging in organized criminal activity. In support thereof, Appellant presented Gonzalez's prior testimony from his trial, in which Gonzalez, a former Bandidos member, testified the Kinfolk Club was not a "gang" that engaged in criminal activities and was instead a "brotherhood" of individuals who shared a common interest in riding motorcycles. In addition, State witness Adam Rios, who was also a former member of both the Bandidos and Kinfolk, testified that the Kinfolk Club was composed of individuals that "wanted just to ride and be a motorcycle club." Both Gonzalez and Rios also explained that the Kinfolk Club was created primarily by former members of the Bandidos as an alternative to the Bandidos, which they both described as a group of violent individuals who often provoked confrontations with Kinfolk members, which in turn required them to carry weapons to protect themselves.
The State countered this point by proffering the testimony of Officer Francisco Balderrama, a gang unit investigator from the El Paso Police Department, to testify as an expert witness on the character of the Kinfolk Club. As discussed in more detail below, over Appellant's objection, Officer Balderrama was allowed to testify that the Kinfolk Club was a "criminal street gang" within the meaning of the Penal Code based on his knowledge of the organization and its members' past criminal conduct.
At the close of trial, the trial court instructed the jury on the necessary elements of all five alleged offenses and further instructed the jury on the lesser-included offense of assault with respect to Appellant striking Martinez in the face. The jury returned verdicts of not guilty on all counts, except for Count II, finding him guilty of engaging in organized criminal activity with respect to the assault of Martinez. Appellant was sentenced to one year in the Texas Department of Criminal Justice, State Felony Division. This appeal followed.
In his sole issue on appeal, Appellant contends the trial court violated Rule 702 of the Texas Rules of Evidence by admitting Officer Balderrama's expert testimony on the issue of whether the Kinfolk Motorcycle Club was a criminal street gang because his testimony was unreliable. We disagree.
Rule 702 provides: "A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." Tex. R. Evid 702. As the Texas Court of Criminal Appeals has recognized, under Rule 702, the following three requirements must be met before a witness may provide expert testimony on a particular subject: "(1) the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the fact-finder in deciding the case." Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim. App. 2006) (citing Alvarado v. State, 912 S.W.2d 199, 215-216 (Tex. Crim. App. 1995) (en banc)); see also Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006). "These conditions are commonly referred to as (1) qualification, (2) reliability, and (3) relevance." Vela v. State, 209 S.W.3d at 131.
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