### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 20
- 00124
- CR

Dana Francis Walcott, Jr. , Appellant

v. The State of Texas , Appellee

FROM THE 264TH DISTRICT COURT OF BELL COUNTY NO. 79769 , THE HONORABLE PAUL L. LEPAK , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
A jury convicted appellant Dana Francis Walcott of the offense of capital murder

. See Tex. Penal Code § 19.03(a)(2)

. The district court rendered judgment on the verdict a nd sentenced Walcott to life imprisonment

. In two iss ues on appeal, Walcott asserts that the district court abused its discretion by admitting evidence of Walcott ’ s gang membership and by excluding a Facebook message , pur portedly written by a witness for the State , in which the witness accepted respo nsibi li ty for the murder. We will affirm the judgment of conviction.

BACKGROUND The State charged Walcott , individually and as a party, with intentionally causing the death of Michael Vanlandingham by shooting Vanlandingham with a firearm in the course of
k id napping him

. At trial, the jury heard evidence that on September 17, 2018, Killeen police2

officers arre sted Geniva Madrid, a suspected drug dealer. One of the arresting officers testified that d uring her arrest, Madrid “ made comments that somebody had sn itched on her

. ” The suspected “ snitch ” was Vanland ingham (the victim)

.

Later that night , Walcott and another man, Tommy Free , kidnapped the victim at a motel in Killeen and transported him first to a residence in Harker Heights , where they met with Fr ee ’ s girlf

ri end, Danielle Tu r be ville , and later to a twenty

- acre piece of property that witnesses called “ the comp o und

. ” Turbeville , who te stified at trial, did not accompany Free and Walcott to the compound but drove there later that morning

. On her way t here , she noticed that the car that Free and Walcott were driving had been abandoned near the property

. Turbeville called Free, who told her that they had “ already walked down to the compound. ” Tu rbeville then drove onto the property and met a man who li ved there, Mark McDaniel , who told her where to find Free and Walcott

. As she drove farther into the compo und , Turbeville saw Free running toward her

. Free got into Turbeville ’ s truck, and she continued driving. Along the way, Turbeville noticed “ item s of clothin g ” that were st r ewn along the ground. Free told her tha t the clothing belonged to the victim

.

Turbeville testified that when they arrived at the victim ’ s location, she noticed that he was completely naked , on his knees and with his h ands bou nd , an d Wal cott was standing next to him. The victim kept s creaming , “ I ’ m sorry, I ’ m sorry, I ’ m sorry , ” and “ I ’ m not a snitch, ” while Walcott kept yelling at him to “ shut up , shut up. ” Free and Walcott began hitting the victim with nearby o bjects , includ in g fence pane ls, tree limbs, and a hatchet that they thr ew
at the victim “ several times , ” “ [ l ] ike a baseball pitcher throws a baseball. ”

Event ually , Free stopped hitting the victim to smoke methamphe tamine with Turbe ville , who asked Free, “What’s the en d result here?” Free responded, “He’s going to die.”3

The victim began to “ scream louder , ” which prompted Walcott to pull a gun from his pants and tell him , “ Michael, shut up. You ’ re going to make me shoot you. ” A t that point, Tur beville turned around a nd began walk ing back to her truck. As she did so, she heard a gunshot and

“ kept walking. ” She then heard another gunshot, turned around, and saw Walcott walking toward her with “ with the gun in his hand, but he was cocking the gun at that momen t

. ”
Mean wh ile , the victim was still alive and attempting to run awa y, with Free chasing him with the hatc het. Walcott remarked to Turbe ville, “ He ’ s a tough son of a bitch. ” Turbeville resumed walking back to her truck, heard the victim beg for his life, and then h eard another gu nshot.

As Turbeville reached her truck , she noticed smoke and flames and realized that

someone had started a fire. She turned around and saw Free , Walcott , and McDaniel, who had just arrived, facing t he flames

. Free then ran to Turbevi ll e ’ s truck, telling her that there was a burn ban in effect and that they ne eded to find a fire extinguisher

. They were unable to find one , and the fire continued to burn

. One of the men told Tu rbeville, “ It ’ s too big

. It ’ s too big. Tur n around. Let ’ s get the fuck out of here. ” Tu rbeville, Free, Walcott, and McDaniel then fled the compound in Turbeville ’ s truck and drove to a motel , where they met with other peo ple who had knowledge of the kidnap ping

. Approximately twenty to thirty mi nutes later, t h e others t old Turbe ville and McDaniel that they were free to leave, and they departed the motel togethe r . Turbeville later left town, fearing that she would share the v ictim ’ s fate if she remained.

McDaniel also testified at trial. McDa niel testified tha t on th e day of the murder, Free had a wakened him at the compound and told him that the victim had “ snitched ” on Madrid

. Free explained to Mc Daniel that he and Walcott were going to take the victim to the back of the property and “ talk ” to him, which McDa n i el understood meant tha t they were going to kill him. McDaniel did not go with them because the matter was “ none of [his] busine ss. ” When4

Turbeville arrived later at the compound to “ check on the boys, ” he directed her to the ba ck of the property. At s o me point there after , McDaniel heard a gunshot and went out to where the others were . When he arrived, he saw Walcott “ wiping off his gun ” an d Free light ing a fire. McDaniel told them , “ What the fuck? There ’ s a burn ban. I just got popped. I ju st got a ticket. ” The men then tried to extinguish the fire but were unable to do so

. McDaniel explained that they left the property in Turbeville ’ s truck and went to a mot el where other people were waiting fo r them

. Free told the o thers that “ it was do ne . ”

L ater that morning, after McDaniel returned to the compound , he talked to another person who lived there and told her what had happened. That person arranged for McDaniel to talk to a police detective , and he did so. The det ective, who had earli er receive d a report of a fire at the compound, went out to the property and followed the trail of the victim ’ s discarded clothing to a burn pi t , where he discovered a “ burned human corpse ” that was later ide ntified as the victim ’ s body. A medical examine r performe d an autopsy on the body, and the cause of death was d etermi ned to be gunshots to the head.

Approximately one week later, police apprehended Walco tt in side a vehicle in which he was the passenger . O n the passenger - side flo o r board of the vehicle , officers found a backpack that contained a fire arm. Ballistics testing performed on the firearm confirmed that it was the same weapon that expelled a shell casing found at the crime scene and fired two bullet fra gments recovered from the victim ’ s body

.

Walcott te s tified in his defense. He claimed that on the night of the kidnapping , he had accompanied Free to the motel for the sole purpose of obtain ing methamphetamine

. When they entered the motel room w here W alcott intended to purchase the drugs , he observed

sev e r al individuals questioning and “ roughing up ” the victim to determine if he had “ snitched ”5

on Madrid. A fter the qu estioning, Free told the victim , “ [ Y ] ou ’ re coming with us , ” and the victim “ d idn ’ t p ut up a whole lot of fight at that point

. ” When they go t into the ir vehicle, Walcott noticed for the first time that the victim ’ s hands were zip

- tied and that Free had a firearm

. Free was driv ing the vehicle , W alcott was sittin g in the front passenger seat, and the victim was in the bac k seat with his hands bou nd

. Walcott claimed that he “ didn ’ t know what to expect at that point

. ”

During the drive, they encountered problems with the vehicle , and a s they neared the compound, t he car “ stopped running completely

. ” Walcott testified that Free “ br andished ” the fire arm at them in a threatening manner and instructed them to walk to the compound

. Walcott also claimed that F ree was responsible for everything that happened to the victim

— Free forced h im to strip, hit him with the fence panels and tr ee l imbs , struck him w ith the h a tchet, shot
him , and burned his body

. According to Walcott, he had trie d to stop Free from hi tting the victim , but “ once he pulled the gun and shot him, there wasn ’ t anything I could do

. ” Walcott d enied Turbe ville ’ s and Mc Dani el ’ s claims that h e held the firearm and wip ed it clean after the victim had been shot

. When asked to exp lain the murder weapon ’ s being found in his possession upon hi s arrest, Walcott claimed that he and Free had stayed at a f riend ’ s house foll owin g the murder and that Fr ee had left the house for several days to smoke methamphetamine , le aving the firearm at t he house. Walcott had also left the house but later return ed to pick up some of his belongings

. When Walcott returned , he found the fir earm , “ grabbed it , ” and kept i t in his backpa ck. He claimed that before he was arrested, he intended to turn over the firearm to the police

. After hearing the evidence, the jury found Walcott guilty of capital mu rder as charged. This appeal followed.6 STAN DARD OF REVIEW

“ Trial cou rt decisions to admit or exclude evidence will not be reversed absent an abuse of discretion. ” Beham v. State , 559 S.W.3d 474 , 478 (Tex. Crim. App. 2018)

. “ Under this standard, the trial court ’ s decision to admit or exclude evid ence will be upheld as lon g as it was within the ‘ zone of reasonable disagreement. ’ ” Id

. (quoting McGe e v. State , 233 S.W.3d 315, 318 (Tex. Crim. App. 2007) ). The trial co urt abuses its discretion in admitt ing or excluding evidence only “ when it act s wi thout reference to any gui ding rules and principles or acts arbitrarily or unreasonably. ” Rhomer v. Sta te , 569 S.W.3d 664 , 669 (Tex. Crim. App. 2019) (citing Montgomery v. S tate , 810 S.W.2d 372, 380 (Tex. Cri m. App . 1990 ) )

.
DISCUSSION Gang
- related ev iden ce

During trial, McDanie l testified that he and Fre e were members of the A ryan Brotherhood and that Free had told him that Walcott was also a member of the Aryan Brotherhood

. McDaniel further testified that he kne w that Free and Walcott were going t o ki ll the victim because that is what the Aryan Brotherhood does “ to snitches ” and that McDaniel was afraid for his life because he had become a “ snitch. ” In his first issue, Walcott asserts that the district court abused its discretion in admitting this ev i dence because it was ir rel evant and more prejudicial than probative

. T he State argues in response that Walcott failed to pres e rve error on th ese grounds and that , even if he had preserved error, the evidence was admissible

.

We first address error preser vation. Prior to trial , W alcott filed a motion in limine

re lating to evidence of Walcott ’ s gang membership , and the district court held a hearing on th at motion. The primary issue during th e hearing was the admissibility of McDaniel ’ s p hone call to7

the p olice reporting the cri me . Walcott argued that statements made during the call , in which McDaniel referenced the Aryan Brotherhood , were inadmis sible hearsay

. Walcott acknowledged that “ from the perspective of motive because they want to elicit that the victim snitched on Geni va [Madrid] , ” evidence of gang membership “ would probably be permissible , ” but not coming from McDaniel ’ s phone call to the police “ because [the police detecti ve] only has it from hearsay

. ” Walcott explained :

If they want to put Mark McDanie l up there I thin k that would probably be permissible and we could also

— if they want to put Mark McDaniel up there, we could discuss the Aryan Brotherhood stuff a little bit further. But our primary objection [to] Detec tive Prestin testifying is that it ’ s hearsay

.
After f urthe r discussion on the matter, t he district court stated that based on its understanding of the evidence at that time, which it noted was “ pretty limited bec ause we haven ’ t heard any , ” McDaniel ’ s testimony relating to gan g membership “ wo uld be admissible ” to p rove motive. However, Walcott asked the district court “ to not yet make that ruling on whether or not in this case gang membership was a motive ” until i t heard the recording of McDaniel ’ s phone call to the police. The district cour t then listened t o the recording of the call and “ sustain [ed] the defense objection to the recordings , ” but it made no ruling at that time to the admissibili ty of McDaniel ’ s testimony relating to the Aryan Brotherhood

.

During trial, t he State asked M cDaniel whether h e had in the past “ become a member of a gang

. ” McDaniel answered, “ The Aryan Brotherhood. ” Walco tt did not object to this but allowed the State to ask a follow

- up question, “ How long have you been a member? ” At that point, Walcott objec ted “ to any menti on of Aryan Brotherhoo d based on your order and the8

ruling , ” without further explanation

. 1 The district court overruled the objection with out
comment , and Walcott did not ask f or a running objection at that time

. T he State asked several more ques tions o f McDa niel related to the Aryan Brotherhood without any objection from Walcott, leading to testimony that as a member of the
A ryan Brotherhood, McDani el knew that Free and Walcott intended to kill the victim ; that Fr ee had referred to Walcott as “ ano ther A ryan brother ” ; th at McDaniel was worried the Aryan Brotherhood would kill him for reporting the crime to the police ; and that the Aryan Broth erhood considered him to be a “ snitch

. ” The State also asked McDaniel if Free had told him that Walco tt was “ AB. ” After McDaniel a nswered, “ Yes, ” Walco tt raised a hearsay objection , which
t he district court sustained , but Walcott raised no other objection to th at testimony

.

Walcott did not object to the subject matter again until after McDaniel had finishe d test if

ying

. I n a hearing outside the presence of the jury following a lunch break, Walcott stated the followi ng:

I think you covered it with Mr. McDaniel ’ s testimony but we have objected in limine to any testimony regarding Aryan Brotherhood and we obje cted a ga in when Mr. McDaniel was testifying. I just want to make it clear that we did object and we do object t o that testimony. I don ’ t want to continue to object if it ’ s just going to continue to be overruled but we object to the testimony about Aryan Brothe rh ood on the basis that it ’ s not relevant, it ’ s mischaracterizing evidence and that it is unfairly prejudi cial under rule 403.

The district court noted that it had “ overruled t h at objection ” and inquired as to whether Walcott

was asking for a running objec tion moving forward

. Walcott answere d in the affirmative, and

1 Wal cott was apparently referring to the district court ’ s statements during the hearing on the motion in limine, but as we have explained, the district court ’ s ruling at that hearing was on t he in admissibility of McDaniel ’ s phone cal l to the police on hearsay grounds ; the district court made no ruli ng at that time on the admissibility of McDaniel ’ s testimony rel ating to the Aryan Brotherhood

.9

t he district court granted Walcott a running objection to any further testimony “ about Mr. Walcott possibly be [ing] Aryan Brotherhood

. ”

“ Under Texas law, ‘ if, on appeal, a defendant cla ims th e trial judge erred in admitting evid ence offered by the State, this error must have been preserved by a proper objection and a ruling on that objection.” Martinez v. State , 98 S.W.3d 189 , 193 (Tex. Crim. App. 2003) (quoting Ethington v. State , 819 S.W.2d 854, 858 (Tex. Crim. App. 1991) ). “ A proper objection is one that is specific and timely. ” Id

. (citing Wilson v. Stat e , 71 S.W.3d 346, 349

– 50 (Tex. Crim. App. 2002) )

. To be timely, “ the defense must have objected to the evidence, if possible, bef

ore it was actually admitted

. ” E thington , 819 S.W.2d at 858

. “ Therefore, if a question clearly calls for an objectionable response, a defendant should make an objectio n before the witness responds. ” Dinkins v. State , 894 S.W.2d 330 , 3 55 (Tex. Crim. App. 1995)

. “ If he fails to object until after an objectionable question has been asked and answered, and he can show no legitimate reason to justify the delay, his objection is untimely and error is waived. ” Id

. ; see Luna v. State , 268 S.W.3d 594 , 604 (Tex. Crim. App. 2008)

.

“Further, with two excep tions, the law in Texas requires a party to continue to object each time inadmissible evidence is offered.” E thington , 819 S.W.2d at 858

. “ The two exceptions require counsel to either (1) obtain a running object ion, o r (2) request a hearing outside the p resence of the jury. ” Martinez , 98 S.W.3d at 193

. “ When the court hears a party ’ s objections outside the presence of the jury and rul es that evidence is admissible, a party need not renew an objection to preserv e a cl aim of error for appeal

. ” Tex. R. Ev id. 103(b) ; see E thington , 819 S.W.2d at 858 . However, the party ’ s objections to the evidence must be specific rather than
gener al, see Mart inez , 98 S.W.3d at 193 , and the party must seek “ a definitive final ruli ng on a timely and specific motion to exclu de evi dence , ” Geuder v. State , 115 S.W.3d 11 , 15 (Tex. Crim.10

App. 2003)

. “ A trial judge ’ s grant or denial of a motion in limine is a preliminary ruling only and normally preserves nothing for appellate review. ” Id . at 14

– 15

.

Here, the record reflects tha t at the hearing on Walcott ’ s motion in limine, Walco tt did not object to the admissibility of McDaniel ’ s testimony relating to the Aryan Brotherho od on the specific relevance grounds that he raises on appeal (and , in f act, he ack nowledged that such eviden ce “ would probably be permissible ” to show motive )

. Walcott did not seek n or could he obtain a definitive, final ruling from the district court on the admissibility of McDaniel ’ s testimony at a hearing on a motion in l imine

. Instead, he ind icated that “ if [the State] want [s] to put Mark McDaniel up there, we could discuss the Aryan Brotherhood stuff a little bit further , ” and he as ked the district court “to not yet make that ruling on whether or not in this case gang m embership was a motive” until it heard the recording of McDaniel’s phone call to the police . However, after the district court listened to the call and sustained Walcott ’ s objection to the recording , Walcott f ailed to obtain a ny additional ruling on the a dmissibility of other g ang - related evidence at that tim e . Thus, Walcott failed to preserve

error a t the hearing a s to the admissi on of such evidence

. See Martinez , 98 S.W.3d at 193 (concluding that defendant ’ s general objection to gang

- related evidence in motion for limine did
not preserve error and that d efendant ’ s objections to photogra phs during hearing outside presence of jury preserved error as to those photos but “ did not pres erve error as to all other evidence of gang affiliation ” ).

As for Walcott ’ s objections during trial, the record reflects that Walco tt did not object when the State asked McDaniel if he was “ a member of a gang ” and McDaniel answered ,

“ The Aryan Brotherhood

. ” Walcott waited to object until after the State asked a follow

- up questi on as to how long McDaniel had been a member of t hat gang

. Mor e o ver, when Walcott11

objected, he did so without indicating the specific grounds for his objection, referring only to the district court ’ s “ order and ruling, ” which, as we have explained, was li mited to the admissibility of the phone call and di d n ot address the specific grounds for exclusion that Walcott raises on appeal

. Also , when the district court overruled Walcott ’ s objection, Walcott failed to obtain a running objection to further evidenc e relating to the Aryan B r otherhood

. As a result , the State elicit ed addi tional testimony from McDaniel on that subject matter without objecti on from Walcott , including that McDaniel, Free, and Walcott were members of that gang, t hat the Aryan Brotherhood killed “snitches,” and th at McDaniel was afraid the Aryan Brotherhood would kill him for being a “snitch

. ” It was not until after McDaniel had finished te stifying that Walcott specified the grounds for his objection and obtained a running objection to an y further testimony relate d to the Aryan Brotherhood. We conclude that Walcott failed to timely object to th is evidence and t hus failed to preserve error , if any, in its admission

. See id

. ; Ethington , 819 S.W.2d at 859 ; Rawlins v. State , 521 S.W.3d 863 , 871 (Tex. App.

— Houston [1 s t Dist.] 2017 , pet. ref ’ d ). Moreover, even if Walcott had preserved error, we c annot conclude on this record
t hat the dis trict court abused its discretion in admitting the evidence. A defendant ’ s g ang membership is g enerally i na dmissi ble absent evidence placing the defendant ’ s gang membe rship

“ in context ” by connecting it to the charged offense

. See D a w s o n v . D e l a w a r e , 5 0 3 U

. S

. 1 5 9 , 165

– 68 ( 1 9 9 2 ) ; Ex parte Martinez , 330 S.W.3d 891 , 902 (Tex. Cri m. App. 2011) ; Galvez v.
State , 96 2 S.W.2d 203, 206 (Tex. Ap p.

— Austin 1998, pet. ref ’ d)

. Thus , evidence of gang membership is inadmissible standing alone, see Dawson , 503 U.S. at 166 , but it may be admissible to show motive, intent, bias, or to refute a defensive theory , s ee Vasquez v. St ate , 67 S.W.3d 229 , 239

– 40 (Tex. Crim. App. 2002) ; Medina v. State , 7 S.W.3d 633 , 644

– 45 (Tex.12

Crim. App. 1999) ; Barrientos v. State , 539 S.W.3d 482 , 492 (Tex. App.

— Houston [1 st Dist.] 2017, no pet.) ; see also Tex, R. Evid. 401 ( “ Evidence is relevant if it has any tendency to make a
f act more or less probable than it would be without the evidence and the fact is of consequence in determining the action

. ” ) , 404(b) ( “ Evidence of a crime, wrong, or other act is not admissible to
prove a person ’ s character ” but “ may be admissible for anoth er purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident

. ” ) ; Ortiz v. State , 93 S.W.3d 79 , 94 (Tex. Crim. App. 2002) ( “ Gang membership evidence is admissible

. . . if it is re levant to show a noncharacter purpose that in turn tends to show the commission of the crime

. ” ).

The State ’ s theory of the case was that the victim was murdered because he was suspected of being a “ snitch ” and the Aryan Brothe rhood kills “ snitches. ” Th us, evidence that Walcott was a member of the Aryan Brotherhood would establish a motiv e for him to kill the victim , and evidence of motive is considere d “ highly relevant ” circumstantial evidence tending to prove the commission o f an offense. See Colone v . State , 5 73 S.W.3d 249 , 266

– 67 (Tex. Crim. App. 2019) ; see also Lopez v. State , 200 S.W.3d 246 , 251 (Tex. App.

— Houston [14 th Dist.] 2006 , pet. ref ’ d ) ( “ Evidence showing motive to commit murder is a sign ificant circumstance indic ating guilt, and it is ther efore relevant and admissible. ” ). It would not have been outside the zone of reasonable disagreement f or t he district court to admit the evidence on that basis

. See Vasquez , 67 S.W.3d at 240 (evidence o f gang membership admissi ble to show motive for gang

- related crime); Medin a , 7 S.W.3d at 643 (evidenc e o f gang

- related activities admissible to explain context in which offense occurred); Barrientos , 539 S.W.3d at 494 (evidence o f gang membership admissible because it helped expla in actions of defendant and co defendant on night of murder and provided evidence of motive ).13 It also would not have been outside the zone of reasonable disagreement for the district court to decline to exclude the evidence under Rule 403 , which allows for the exclusion of relevant evidence only “ if its probative value is substantially outweighed by a danger of

. . . unfair prejudice , confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” Tex. R. Evid. 403

. “The term ‘probative value’ refers to the inherent probative force of an item of evidence

— that is, how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation

— c oupled with the proponent ’ s need for that item of evidence.” Davis v. St ate , 329 S.W.3d 798, 806 (Tex. Crim. App. 2010)

.

“ ‘Unfair prejudice’ refers to a tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Id

. “ It is only when there exists a clear disparity between the degr ee of prejudice produced by the offered evidence and its probative value that Rule 403 is applicable. ” Id

. “ A Rule 403 analysis generally balances the following four factors, though they are not exclusive: (1) how probative the evidence is, (2) the poten tial of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent ’ s need for the evidence. ” Colone , 573 S.W.3d at 266 ; se e also Gigliobianco v. Stat e , 210 S.W.3d 637, 6 42 (Tex. Crim. App. 2006) ( e xplaining factors in more detail and obser ving that they “ may well blend together in practice ” )

.

Regarding the probative value of the evidence and the State ’ s need for it , as we hav e already explained, the e v idence showed that Walcott had a motive to kill the victim

. Mor e than that , it provided the jury with important contextual information to help it und erstand the crime . As the State explained in its brief, “ [ W ] ithout evidence th at Appellant and his accompli ce are members of the Aryan Brotherhood, as well as what that gang does to snitches, this murd er is hard to fathom: why would two people, seemingly without provocation, kidnap a person, torture14

him, and murder him in a horrific fashion? ” Additionally , the evidence establish ed the relationship between Walcott and Free , who participated in the kidnapping and killing , and helped to explai n why Free and Walcott involved McDaniel , anot her gang member, who was one of the key witnesse s for the State. Th e evidenc e further helped to explain why McDaniel was afraid for his life a fter reporting the crime and help ed the jury to evaluate his credibility as a witness

. The evidence also tended to refute Walcott ’ s defensive theory that he wen t to the motel where the vict im was kidnapped for the sole purpose of purchasing drugs and that he was

unaware of and an unwitting participant in Free ’ s plan to kidnap and kill the victim. In sum, the evidence was highly probative of motive and other crit ical issues in the cas e and t he State ’ s need for the evidence was significant in that it helped to contextualize the entire crime for the jury

. Thus, the first and fourth factors weigh against exclusion

.

Regarding the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way , evidence of gang membership is considered “ highly inflammatory. ”
See Barri entos , 539 S.W.3d at 492 ; Galv ez , 962 S.W.2d at 206 . Thus, th e second factor weighs in favor of exclusion. However, t he third factor, the t ime nee ded to develop the evidence, weighs against exclusion in this case

. The State developed t he evidence through the testimony of a single witness, McDaniel, and the ques tions related to the Aryan Br otherhood did not consume an in ordinate amount of time durin g the trial

.

In sum, while the second factor weighs in favor of excluding the evidence, the first, third, and fourth factors weigh against exclusion

. On this record, we cannot conclude that the district court abused its discr etion in finding that the pro bative value of the evidence was not

“ substantially outweighed ” by the dan ger of unfair prejudice

. See Barrientos , 539 S.W.3d at 494

– 95 ; McCallum v. State , 311 S.W.3d 9 , 1 5

– 16 (Te x. App.

— San Antonio 2010, no pet.)

.15 Bec ause we conclude that Walcott failed to preserve error in the admission of the
gang - related evidence and that even if he had preserved error, the district court did not abuse its discretion in admitting it, w e overrule Walcott ’ s first issue.

Facebook mess age

In a hearing outside th e presence of the jury, the victim ’ s mother te stified that in August 2019, she recei ved a Facebook message from someone identifying herself as “ Danielle Turveville. ” In the message, the person ask ed for forgiveness for “ what I ’ ve done to you r son Michael, ” state d that she wa s “ fully responsible ” for taking his life , claim ed to be “ the mai n ring leader for his death , ” and assert ed that she shot the victim

. Walcott sought t o admit the contents of th is m essage as a “ prior inconsis tent statement ” of Turbeville , see Tex. R. Evid. 613(a) , but the State obje cted , argu ing tha t Walcott had failed to authenticate the message and that it was inadmissible for that reason , see id . R. 901 (a)

. The district court sustained the State ’ s objectio n. In his second issue , Walc o tt asserts that the exclusion of th is evidenc e denied him his constitutional ri ght t o present a compl ete defense at trial

. See Potier v. State , 68 S.W.3d 657 , 659 (Tex. Crim. App. 200 2) ( “ [T] he exclusion of a defendant ’ s evid ence can amount to a violatio n of the right to compel the attendance of wit nesses in the defendant ’ s favor

. ” ) ; Martinez
v. State , 2 12 S.W.3d 411 , 423 (Tex. App.

— Austin 2006, pet. ref ’ d) ( “ A trial court ’ s ruling excluding evidence may rise to the level of a constitutional violation if the ruling excludes otherwise relevant and rel iable evidence which ‘ forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense

. ’ ” (quot ing Wiley v.
State , 74 S.W.3d 399, 405 (Tex. Crim. App. 2002) ) )

.16 T he State argues that Walcott forfeited this constitutional ground by not raising the argument at trial. We agree. The constitutional right to present a complete def ense is subject to forfeiture by not bringing to the tria l court ’ s attention the denial of that right

. See Anderson v.
State , 301 S.W.3d 276, 280 (Tex. Crim. App. 2009) ; Carrion v. State , 488 S.W.3d 925 , 928 (Tex. App.

— Eastland 2016, pet. ref ’ d)

. Here, Walcott responded to the State ’ s authentication object ion by arguing that it should be admissib le as a prior inconsistent statement under Tex as Rule of Evidence 613 . He never articulated to the trial court that the exclusion of the evidence would violate his constitutional right to present a complete defense

. A ccordingly, he has failed to preserve that issue for our review

. See Leza v. State , 351 S.W.3d 344 , 360

– 61 (Tex. Crim. App. 2011) (concluding that appellant ’ s argument that prof f e red evidence sati sfied exception to hearsay rule did not preserve error rega rding denial of right to present comp lete defens e because defendant “ never alerted the trial court in any way that exclusion

. . . would violate any federal constitutional right ” ) ; Broxton v. State , 909 S.W.2d 912 , 918 (Tex . Crim. App. 1995) (concluding th at argument based on evidentia ry rule did not preserve error regarding denial of defendant ’ s right to pre sent d efense) see also Cerda v. State , No. 03

- 12

- 00582

- CR , 2014 WL 4179359 , at *6 (Tex. App.

— Austin Aug

. 22, 2014 , pet. ref ’ d) (mem. op., not designat e d for publication) ( “ Because appellant did not articul ate that his right to present a meaningful defense
suppo rted the admission of the complained

- of excluded ev idence

. . . the trial court never had the opportunity to rule on this rationale

. ” ).

Additio n ally, even if Walcott had preserved error , we cannot c onclude on th is record that the di strict court abused it s discretion in excluding the evidence. The constitutional right to present a complete defense “ is qualified by the requirement that the evidenc e be relevant and not excluded by an established eviden tiary rule

. ” Da vis v. State , 313 S.W.3d 317 , 329 n.2617

( Tex. Crim. App. 2010)

. “ A bedrock condition of ad missibility of evidence in any legal contest is its relevance to an issue in the case

— that is t o say, its tendency to make a fact of consequence to de termination of the action more or less probable

. ” Tiend a v. State , 358 S.W.3d 633 , 638 (Tex. Crim. App. 2012)

. “ Evidence has n o relevance if it is not authentically what its proponent claims it to be

. ” Id

. “ Rule 901(a) of the Rules of Evidence defines authentication as a ‘ condition
pre cedent ’ to admissibili ty of evidence that requires the proponent to make a threshold showing that woul d be ‘ sufficient to support a finding that the matter in question is what its proponent claims. ’ ” Id

. (quoting Tex. R. Evid. 901(a) ). “ Evidence may be a uthenticated in a numb er of ways, including by direct testimony from a witness with personal knowledge, by comparison with other authenticated evidence, or by circumst a ntial evidence. ” Id

.

“ In the context of communica tions, the authentication issue th at generally arises is whether the evidence is sufficiently linked to the purported author. ” Campbell v. State , 382 S.W.3d 545 , 549 (Tex. App.

— Austin 2012, no pet.)

. “ I n evaluating whether an electronic communication has been sufficiently linked to the p urported author, ” this Court has

“ recognize [ d ] that electronic communications are susceptible to fabrication and manipulation. ” Id

. at 549

– 50

. Soc i al networking webs i tes such as Facebook “ allow users to establish an onli ne

ac count, create a profile, and then invite others to access that profile as a ‘ friend. ’ ” Id

. at 550

.

“ Accordingly, with respect to identity, Facebook presents an authentication concern that is
two f old. ” Id

. “ First, because anyone can establish a fic titious profile under any name , th e person viewing the p rofile has no way of knowing whether the profile is legitimate. ” Id

.

“ Second, because a person may gain access to another person ’ s account by o b taining the user ’ s name and password, the person viewi ng communications on or from an ac count profile cannot b e certain that the author is in fact the profile owner. ” Id

. “ Thus, the fact that an electronic18

communication on its face purports to originate from a certain person ’ s social networking account is g enerally insufficient standing alo ne to authenticate tha t person as the author of the communication. ” Id

. Other evidence of authenticity is required, such as internal similari ties between the purport e d message and other verified messages of the author , u nique spee ch and writing patterns used by the purported author , and the inclusion of information that only the purported author would know

. See Tienda , 358 S.W .3d at 640

– 45 ; Campbell , 382 S.W.3d at 55 1

– 53

. Here, the Facebook message purported to be from “ Danielle Tu rv eville, ” which is not even the c orrec t spe lling of Turbeville ’ s last name . In a hearing outside the presence of the jury, Turbeville testified that she had not sent any Faceb ook mes s age to the victim ’ s mother or any other member of the victim ’ s family and that she had deactivated her Faceboo k account in late summer or early fall of 2019 a fter learning from police that her account might have been hacked . Michael Eskelin, a private inv es tigator who had been hired by the defense to assist wit h the case, testified that the user name of Turbeville ’ s Fac eb ook account was

“ Danielle.Turbeville.9 ” and that the accou nt was currently active , al though he could not determine when it had been activa te d or who had activated it. T he username of the Faceboo k
account that had been associated with the message to t he victim ’ s mother was

“ Danielle.Turveville.7121 , ” and Eskelin had been unable to find any F acebook account containing that username

. Thus, he a greed with the prosecutor that he had “ no idea ” who had created that account. As for the message itself, it co ntained information describing the crime that

w ould have been known to other people in addition to Turbe ville at the time the message was
sent, a pproximately one year after the murder . Moreover, Walc ott presented no evidence that the message contained a p hotograph or other identifying information of Turbeville, any speech or19

writing patterns that were unique to Turbeville , or that the message wa s similar in any way to

o t her communication that Turbevil le had sent

. On this record, we cannot conclude that it was outside the zone of reasonable disagreement for the district court to conclude that Walcott had failed to suffi ciently authenticate the Fa ce book message and to excl ude the evidence for that

reaso n. See Dering v. State , 465 S.W.3d 668, 672 (Tex. App.

— Eastland 2015, no pet.) (concluding that trial court did not err in excluding Facebook posts beca use “ [ t ] here was no evidence of the authentici ty of who the purported au thor was of any of the Facebook posts ” ).

We overrule Walcott ’ s second issue.

CONCLUSION We affirm the distri ct court ’ s judgme nt of conviction.

______________ ____________________________ Gi sela D. Triana , Justice Before Justices Goodwin, Triana, and Kelly
A ffirmed
F iled: May 21, 2021 Do Not Publish