IN THE

TENTH COURT OF APPEALS

No. 10-09-00362-CR

KEVIN RAY DAVIS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2008-2105-C2

MEMORANDUM OPINION

Kevin Ray Davis appeals his conviction for aggravated assault with a deadly 

weapon. TEX. PEN. CODE ANN. § 22.02 (Vernon 2003). Based on the jury’s verdict on 

punishment, the trial court sentenced Davis to imprisonment for twenty-five years in 

the Texas Department of Criminal Justice – Institutional Division. Davis complains that 

the trial court abused its discretion by refusing to allow testimony of an opinion 

regarding the victim’s character for truthfulness in the guilt-innocence phase and in the 

admission of testimony regarding his gang affiliation in the punishment phase of the 

trial. Because we find no reversible error, we affirm the judgment of the trial court.
Davis v. State Page 2

Opinion Regarding Truthfulness

 Davis complains that the trial court erred by sustaining an objection by the State 

to a question propounded to a probation officer regarding the victim’s character for 

truthfulness based solely on the information contained in the victim’s probation file. 

Davis sought to elicit the testimony of a supervisor in the probation department that 

supervised the victim’s probation for the offense of tampering with a governmental 

record pursuant to Texas Rule of Evidence 608.

In a hearing outside of the presence of the jury, Davis made a proffer of the 

proposed testimony of the probation officer. Specifically, he asked the following:

Q: Ma’am, I think we were about to the part where I think I asked you 

if you had a chance to look at the file. 

A: Yes.

Q: Okay. And that’s a file that’s kept in the normal course of the 

operation of the probation department; is that correct?

A: That’s correct.

Q: Okay. Records made by people who have personal knowledge of 

the entries, is that right?

A: That’s correct.

Q: Okay. And you’ve had a chance to look at that. And based on 

what you’ve seen in those records, do you have an opinion on whether 

Ms. Rollins is a truthful person or not?

A: Yes, I do.

Q: And what would that be?

A: That she is not a truthful person.
Davis v. State Page 3

It is apparent that at the trial court, Davis was seeking to elicit testimony 

regarding the probation officer’s opinion regarding the victim’s character for 

truthfulness, not the victim’s reputation for truthfulness. However, his complaint to this 

Court relates solely to reputation evidence. Testimony regarding a witness’s opinion of 

the victim’s character for truthfulness is not the same as a witness’s knowledge of the 

victim’s reputation for truthfulness. See, generally, Scott v. State, 222 S.W.3d 820, 823-826 

(Tex. App.—Houston [14th Dist.] 2007, no pet.). The first is the direct opinion of the 

witness, which could be based solely on personal knowledge. The second is based on 

significantly more information. Reputation evidence must be based on conversations 

with others or hearing others discuss the reputation of the individual in question, not 

just personal knowledge. See Adanandus v. State, 866 S.W.2d 210, 226 (Tex. Crim. App. 

1993). Davis’s complaint does not comport with his objection at trial. To preserve error 

for appellate review, the point of error on appeal must comport with the objection made 

at trial. See TEX. R. APP. P. 33.1; see also Sorto v. State, 173 S.W.3d 469, 476 (Tex. Crim. 

App. 2005). We overrule issue one.

Evidence of Gang Membership 

Davis complains that the trial court erred by allowing the introduction of 

evidence of his purported membership in the “Crips,” including the introduction of a 

photograph of Davis making a gang sign in the punishment phase of his trial. Davis 

contends that the admission of the gang-related evidence was more prejudicial than 

probative. However, during the testimony given relating to Davis’s purported gang 

membership and the activities of the Crips in general, Davis only objected one time on 
Davis v. State Page 4

the basis of relevance. Therefore, we limit our consideration of this issue to the only 

time Davis objected on the basis that the evidence was more prejudicial than probative, 

which was at the time of the admission of the photograph. See TEX. R. APP. P. 33.1. 

We review challenges to the admission of evidence for an abuse of discretion by 

the trial court. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on 

reh'g) (“as long as the trial court's decision was within the zone of reasonable 

disagreement and was correct under any theory of law applicable to the case, it must be 

upheld”). Evidence of membership in a gang during the punishment phase of a trial is 

generally admissible as evidence of the defendant’s character, as is evidence relating to 

the activities of the gang. Beasley v. State, 902 S.W.2d 452, 456-57 (Tex. Crim. App. 1995). 

Davis does not cite to any authorities in support of his contention that the photograph 

should have been excluded. We do not believe that the admission of the photograph of 

Davis was outside of the zone of reasonable disagreement. We overrule issue two.

Conclusion

We find that the argument made in this appeal regarding the admission of the 

opinion of the probation officer does not comport with his objection at trial. We find 

that the trial court did not abuse its discretion in the admission of a photograph of 

Davis making a gang sign. We affirm the judgment of the trial court.

TOM GRAY

Chief Justice
Davis v. State Page 5

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Affirmed

Opinion delivered and filed July 21, 2010

Do not publish 

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