## In the Court of Appeals Second Appellate Distri ct of Texas

at Fort Worth

___________________________ No

. 02

- 22

- 00076

- C R N o. 02

- 22

- 0007 7

- C R

___________________________

On Appeal from the 462nd District Court Denton County, Te xas Trial Court No s . F19

- 3852

- 211, F19

- 3853

- 211

Before Sudde rth, C.J.; Kerr and Womack, JJ. M emorandum Opinion by C h ief Justic e Sudd er th 

### A NTWON 

### P INKSTON 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM O PI NION During a traf

fi c stop, A ppellant Antwon Pinkston opened fire on t wo police

o fficers , missing one a nd sho oting the other in the head

. A jury found Pinkston gui lty
of two counts of aggrava ted assault of a publ ic servant , and it asse ssed his punishm ent

at c on fine ment for life on one count and for 35 years on the other

. Pinks ton argues that (1) the disjun ctive nature of one of his two jury c harge s authorized a non un animous verdic t ; and ( 2) the trial cou rt erred by admitting th r ee types of punishment evidence

— penitentiary packets that Pinkston claim s were not
timel y disclosed , allegedly unreliable testimony from a fingerprint expert , and alleg edly
ir relevant tes timony from a gang expert linking Pinkston ’ s tattoos to a gang aff ili ation

. Because t here is binding C o urt of Criminal Appeals precedent rejecting Pinkston ’ s first argument , and because h is three evi denti ar y challenges are either unpr es erved or

concern harmless error , w e will affirm. I. Backgr ound
Pink ston comm itted his crime s durin g a n October 2019 traffic stop , much of
which was recorded on police bod y
- camera footage

. Pinkston was riding i n th e fro nt passenger seat of a c ar driven by Michell e St a c ey when , around mi dnight , Denton Pol ice Offi cer Urban Rodriguez stopped the

car for t ail light an d registration issues

. S tac ey pulled over in a Taco Bell parki ng lot , and when Officer Rodrigue z approached t he vehicle to spe ak with her , she got out of the vehicle, then sat back down sid ewa ys in the driver ’ s seat with her door open and3

her body facing the officer

. O f ficer Rodrigue z ’ s ligh t illuminated Stacey ’ s face for

most of their video

- recorded conver sat io n , but th e light did not extend to Pinkston ’ s face

. Pinkston ’ s face remained largely hidden in the interior sha dow s of the vehicle

. When Officer Rodriguez asked fo r identification, Pink ston pr ovided his, but
Stac ey tol d the officer that her wall e t and d river ’ s license ha d been stolen

. Smel ling

m arijuana in the car, Officer R odriguez asked if S tacey and Pinkston ha d been smoking the substanc e , and he indicated that he inten ded to search the vehicle. As
the officer stood talking wi th S t ac ey about t he mar ijuana, his b ody camera captured
Pinkston ’ s shad ow shifting and mov ing in the background

. M oments later, the body

camera jerk ed a nd the footage w as obscure d as Officer Rodr iguez yell ed , “ Ha nd s up
now! Han ds u p now! Move you r head lady! ” A series of gun shots rang out , and
O ffi cer Rodrigu ez f

el l to the ground, dropp ing Pinkston ’ s driver ’ s l icense next to him

. Of ficer Cole w as walking up t o a ssist with the traffic sto p wh en Officer Rodriguez began yelling for “ [ h ] ands. ” After hearing the g unshots and seei ng Officer Rodriguez f

a ll , Officer C o le took cover behind his patro l vehicle and ex changed
gun fire with P inkston

. S t acey then maneuvered her vehicle ar ou nd Officer
Rodri guez ’ s b le eding b ody , and s he and Pinkston fled the scene . When Officer Cole

ran u p t o Officer Rodr iguez , he saw that “ his sk ull was gone

. . . [and h] is b rain was

e xposed

. ” Again, Offi cer Cole ’ s perspective was reco rded on his body

- camera footage.4

St ac ey and Pinkston w ere appre hended w ithin an hour

. T hey were riding i n the

same , bull et

- riddle d ca r , and they b oth had gunshot w ounds

. W hen a Texas Ranger spoke with Pinkston in a n inter view ro om and accused hi m of shooting a police
officer , Pinkston had a muted rea c tion

— he s quinted, looked a wa y , and letharg ically

mum bled that he was cold , w anted to call his gran dmother, and needed to use the

restroom
. 1
O fficer Rodrigue z ’ s gunshot wounds to th e head and t he le g resulted in
p ermanent injuries . He underwent f ive brain surge r ies ; the surge ons removed a portion of his skull , plac ed a perma n ent t itanium plate , and i nstal led a permanent
shunt to drain excess brain fluid

. His leg wo und required an a dditional surge ry to place a permanent rod in his f emur
. Officer Rodrigu ez required rehabilitati on to l earn how to ea t, talk , and walk again

. A t the t ime of Pink st on ’ s 2022 tri al

— m ore tha n two
years after the traffic st op

— O f ficer Ro driguez was st

ill in rehab ilitation , h e still could
not read , he still had language defici ts , he still suffered periodic se iz u res, and he still
had limi ted use of the r i ght s ide of his body

.

1 The remainder of Pi nkston ’s inter view was much the s ame . T he Texas Ranger attempted to ta lk to Pinkston about th e t raffi c stop, but Pinkston repeat edly looked
aw ay and mu mbl ed about being cold

. When th e Te xas Ranger provided a coat to warm Pinkston, he continued to mumble that he was cold and that h is a rm hurt

. H e repeatedly t urned away f

rom the Texas Ranger to cu r l up in the intervi ew chair in an attempt to go to sleep

. T he Tex as Ranger asked Pinkston “ what k ind of drugs [ he was] on, ” but P inkston mumbled that he w as on “ no drugs at all. ”5

Pinks ton w as indicted on two counts of first

- degree felony aggr avated assault

o f a p ublic se rvant , wi th each count enhan ced by two prior felony convictions

. See
T ex. Pe nal Code Ann. § § 12.42(d), 22.02 ( a ), (b)(2)( B )

. A t trial, Pin k ston ’ s theor y of the case was that Stacey had been the gun man. 2 Stacey testified to the con tr a ry
. A l though she told the jur y that she did not remember seeing Pinkston with a gun that nigh t , she knew that she did not have a gun, so “ [ c ] ommon sense ” told h e r th at Pinkston was the shooter

. Her testimony w a s consistent with Officer Ro d riguez ’ s body

- camera footage in the moments bef ore the shoo ting , th e gunshot traje ctory analysis p erformed on Stacey ’ s vehicle, th e locations and patterns of Stac ey ’ s a nd
Pink s ton ’ s gunshot wounds , a nd Pinks ton ’ s calm and dis interested respons e when the Texas Range r accus ed him of the crime

. At the end of the guilt

– innocenc e phase , the jury received two charges

— one for each cause number . The first char ge , which concern ed the o ffens e against Offi cer Cole, authorized a guilty v e rdict i f the jury found that Pinkston

“ th reaten[ ed]

. . . immine nt bodily injury by shoot ing a firea rm toward s . . . or pointing
a firearm at, towards, or in the direction of [Offi cer ] Cole , . . . [while] us[in g] or exhibit[ing

] a deadly weap on, to wit: a firearm

. ” See id. § 22.02 ( a ) (2)

. T he second
char ge , which addressed Pinkston ’ s assau lt of Officer Rodriguez , was slightly

2 Officer Rod ri gue z c ould not recall who shot hi m or where the shots came fr om . O f

f i cer Co le could not s ee the gunman , bu t he could tell that the shooting
came from inside Stac ey ’ s vehicle.6

different; i t co ntained d is junctive p aragr aphs t hat a uthorized a guilty verdict if t he jury
found that Pinkston eith er ( 1) “cause[d] serious bodily injury to [Officer ] Rodriguez by s hooting [him] with a firearm, ” or (2 ) “cause[d] bodily injury to [Officer] Rodriguez by sh ooting [him] with a firear m . . . [while] us [ing ] o r exh ibit [

i n g ] a de adly weapon , to
wit: a firearm .” See id

. § 22.02(a). The jury re turned guilty ve rdict s o n both counts

. During the punishment phase , the tr ial cour t admitted into ev id ence , among other things, ( 1 ) pen i te ntiary packets ( commonly referred to as “ pen packets ” ) that
Pinkston claimed the S t ate had not timely disclose d ; (2) testimony from a f ingerprint
expert , which P inkston objected to bas ed on “ the Kelly factors and/or the Dauber t
factors ” ; a n d (3) testimony from a gang expert who pointed out component s of
Pin kston ’ s photographed tatto os that led him to believe that Pinkston wa s a membe r of the “ 5

- Deuce Hoova Cri p s . ” 3 Afte r hearing the ev idence, t he jur y found all of the prior

- felony enhanceme nts t o be true , and it returned a verdict of life in p rison f or the aggravated assault of O f

fi cer Rodriguez an d 35 years in prison for th e ag gravated
assault of Officer Cole

. See id. § § 12.32 , 12.42 ( d ) , 22.02 (b)(2)(

B )

.

3 The gang expert testified that , after looking at the photo s of Pinksto n ’ s t a t toos, he checked the g ang database “ to support [his] initial o pinion o r [ his] theory that [Pinkston] wa s a member of t he 5

- Deuce Hoov a Cri ps. ”7 II. Discussion On appeal, Pinkston challenges (1) the disjunctive nature of his jury char ge , an d (2) th e admission of h i s pen packets , testimony fr om the f ingerprint expert , and

test imony from the gang expert

. A
. The trial court did not err by submitting a disjunctive jur y charge
. In his first issue, Pi nkston contend s t hat th e tria l court erred b y submi tt ing a
dis junctive jury charge contain ing two alternat ive the ories of Officer Ro driguez ’ s aggravate d a ssault

— causing serious bodily injury and causing bodily injury while using or exhibiting a deadly weap on . See id. § 2 2.02( a). Pinkston claim s t h at the two
theor ies reflect different offenses bec ause , accord ing to him, a ggravated ass ault base d
on serio us bo dily injury is result

- oriented while a ggravated assault based on bodily inj ury with the u se or exh ib ition of a deadl y w eapon is both conduct

- or i ented a nd
result

- orie nted.
T he C ourt of Crim inal Appeals r ejected th is argument in Land ri an v. State

. 268
S.W.3d 532 , 532

– 4 2 (Tex. C rim. App . 2008)

. There, the jury charge auth orize d a
conviction f

or aggravated assault if the jury found that the def end ant ei ther (1) inte ntionally or kn owingly caused bo dily inju ry using a bottle as a deadly weapon or (2) recklessly caused serious bodily injury by throwing a bottle

. Id. at 533

– 34

. T he court of appe als held that this charge au thorized a non unamiou s ve rd i ct, id

. at 535,
b u t the Court of C rimi nal Appeals dis agreed , i d. at 536

– 4 2

. The c ourt held that

“ j urors need [not] be unanimous about which aggravating factor or ele ment that th ey8

fin d [ ;]

. . . . the defendant may be convicted [of agg ravate d assault] i f e ach ju ror conclude s that at least one of the aggravating fac tors or elements exist

. ” Id. at 538

– 39; s ee id. at 53 6

– 4 2 (explaining that , puttin g aside assault by threat, aggravat ed assault
is res ult

- oriente d, the actus reus is “causing bodily injury , ” a nd bo th a ggrava ting
circumstances in S e ct

ion 22.02 invo lve the use of a deadly we apon ). 4 Although Pinkston takes issu e with L andrian ’ s rationale, 5 we are not a t liberty to disregard b indin g preceden t from the Court of Criminal Appea ls. See Weaver v. Sta te , N o. 0 2

- 21

- 00081

- C R, 2022 WL 2978730, at *10 (Tex. App.

— For t Worth July 28, 2022, pet. ref’d) (mem. op., not desig nated for publication) ( noti ng that “ a decis ion of the [C]ourt of [C]rimi nal [A]ppeals is binding precedent , [and] we are compelled to
comp ly w i th i ts dictates ” (quoting State v. Stevenson , 993 S.W.2d 857, 867 (Tex. App.

— Fort Worth 1999, no pet.) (op . on remand) )) ; cf. Hutto v. Davi s , 454 U.S. 370, 375, 102

4 W hether the jury found that Pinkston caus ed serious bodily injury or that he
ca us ed bodily inju ry whil e using or exhibiting a deadly w eapon, “ both of these means of commi tti ng aggra v ated bodily assaul t involve the use of a deadly weapon

. ” Landrian , 268 S.W.3d at 538

. “ The first way necessarily implies the use of a deadly weapon, wh ich is [ sta tutor il y defined to include ] ‘ anything that in the manner of its use or intended us e is cap a ble of causing dea th or serious bodily injury [,] ’ [and t] he second way specifies the use of a deadly weapon. ” Blount v. State , 257 S.W.3d 712, 714 (Tex. Crim. App. 2008 ) (quoting Tex. Penal Code Ann. § 1.07 ) ; see Tex. Penal Code A nn. § 1.07(a) (17 )(B); La n dria n , 268 S.W.3d at 538 (quoting Blou n t ).

5 Pin kston als o a rgues

—

without expl anation

— th at the Landrian holding was dicta. We disagree

. A lth oug h Landri an involved alterna tive mens re a fin dings as part of the alternative aggravat ing elem ents , the Cour t o f Cri m inal Appeals did not confine i ts holding or rationale t o instances of alternative mens rea ; it addressed alternative aggravating elements

. Se e Land rian , 268 S.W.3d at 53 6

– 42

.9

S. Ct. 703, 706 (19 82) (per curiam ) ( “[ U] nless we wish anarchy to prevail within
the

. . . jud ici al system, a precedent of [the higher] Court must be followed by the
lower

. . . courts
. ”).
We ov errule P inkston ’ s first issue.
B
. The trial court ’ s evidentiary rulings were not abuse s of discretion.
Pinkston ’ s three oth er appellate issues que stio n thr ee of the tr ial court ’s evidentiary rulings

. 1
. S t andard of review
We review a tri al court ’ s deci sion to admit or exc lude evidence for an abuse of
disc retion

. Wells v. State , 611 S.W.3d 396, 427 (Tex. Crim. App. 2020 ) ; Guzman v. State , 955 S.W. 2 d 85 , 89 (

Tex. Crim. App. 1997 ) ; Redmond v. State , 629 S.W.3d 534, 541 (Tex. App.

— Fort Worth 2021, pet. ref’d)

. Th e trial court does not abuse its discre tion by admitting cha llenged evidence unless its dete rmination l ies outsi de the zon e of
reasonable di sagre ement. Wells , 611 S.W.3d at 427 ; Redmond , 629 S.W.3d at 541

. And

e ve n if a tr

ial court abuses its discretio n by admitting e vidence , that error must be preserved before a defendant can complain about it on appeal

. See T ex. R . App. P. 33.1(a). Furth ermore, eve n preserv ed error in the admissio n of eviden ce will not
result in a reversal without a s howing of harm. S ee Tex. R. App. P. 44.2 ; Cook v. State , No. PD

- 0850

- 21, 2023 WL 15298 4, at * 4

– 5 (Tex. Crim. App . Jan. 11, 2023)

. And no harm occurs “ whe n a defendant fails to object at trial to cumulative evid en ce of the

same fact

. . . or wh en a defendan t fail s to challenge other, cumu lative evidence of the10

same fact on appeal. ” Mayo v. State , No. 02

- 19

- 00404

- CR, 2021 WL 2587065, at * 3 (Tex. App.

— Fort Worth June 24, 2021, no pet.) (mem. op., not designated fo r publi c ation) ; see Cook , 2023 WL 15298 4, at *5 ( “ T he erroneous admiss ion of evidence

‘ wi ll not result in reversal when other such evidence was rece ived withou t objection,
either bef ore or aft er th e comp lained

- of r uling. ’ ” ( q uoting Le day v. State , 983 S.W. 2d 713, 718 (Tex. Crim. App. 1998 ) ) )

. 2
. Alle gedly undis cl osed p en pac ke ts
Pi nk ston claims that th e trial court e rred by admitting his three pen packets 6
into evidence during t he punishment phase becau se , acco r ding to him, the State
violated A rticle 39.14 of the Code of Crimi na l Pro c edure by failing to d isclose the p en
p ackets unti l the day befor e they were offered into evid ence . 7 See Tex. Code Crim.
Proc. Ann. a rt. 39.14 (a)

.

6 “A penitentiary packet or ‘pen packet’ c onsists of au the nticated recor ds f rom the T exas Department of Corrections or other penal institution regarding a person ’ s pr ior convictions.” Carkin v. Sta te , No. 04

- 99

- 00411

- CR, 2 0 0 1 WL 166374, at *2 (Tex

. Ap p.

— San A ntonio Feb. 21, 2001, no pet.) ( not de sig nated for pub lication)

.

7 Pi n kston also claims that the trial court should ha ve applied Article 39.14 to exclude seven o ther punishment e xhi bits : six judgment s of convict ion a nd one summary of the di s ciplinary mat ters that Pi nkston was involved in wh ile he was in pr ison

. But at tria l , Pinkston ’ s Article 39.1 4 objection was limi ted to the pen packets , and he did not claim that these seven exhi bits had not been timely prod u c ed

. Even
on app eal , it is unclear if Pink ston is alleging that the se seven exhibi ts were not ti mely prod uced

. I n fact, h e appear s to co ncede that at least some of t hem were

. Either way, Pinkston did no t preserve a n Article 3 9. 14 challenge to the admi ssion of the
seven non

- pen

- pack et exhib its

. See Tex. R. App. P. 33.1(a). Furthermor e, one of the
se ven exh ibi ts

— th e s ummary of prison disciplinary matters

— was not admitted into evidence at all; it was admitted for record pur poses only.11

But the S t ate ’ s alleged failure to disc lose the p en packets was just that : al leged.
As Pinksto n acknowledges , there was a factual dispute on this issue

— Pink ston claimed that the three pen pa cket s had not been ti m ely produced, but the State
claimed that t hey had. I n this context, the tria l cour t was “ the sole tr ier of fact an d judge of the credibility of the wit nesses and the weight to be given their testimon y , ”
and it resolve d the fact issue in the S t ate ’s favor

. State v. Ross , 32 S.W.3d 853, 855 ( Te x. Cr im. App. 2000) ; see Oprean v. Sta t e , 20 1 S.W.3 d 724, 726 (Tex. Crim. Ap p
. 2006) (noting that “ an appellate c ourt will

. . . [ ‘ ] assume that the tria l court mad e implicit findings of fact that su pport its ruling as long as those findings are supported by t he r ecord ’ ” (qu oting Ross , 32 S.W.3 d at 855 ) ). W e mu st yi eld to that
determi n ation. See Guzman , 955 S.W.2d a t 89 ( “ [ A] s a general rule, the appellate

courts
. . . should afford a lmost total deference to a trial court ’ s determination of the
historical fa c ts
. . . based on an evaluation of c redibil ity and demeanor

. ”) ; Barlow v. Sta t e , No. 05

- 21

- 0 0392

- CR, 2022 WL 1 6847694, at * 4

– 6 (Tex. App.

— Dallas Nov. 10, 2022, no pet.) (mem . op., n ot designated for publication ) (yielding to trial court a s “the sole judge of w

itness cred ibility ” when trial c ourt he ard evidence on alleged
Article 39

. 14 violation and denied motion f or new tr ial

) ; Brown v. State , No. 06

- 14

- 00115

- CR, 2015 WL 4396378, at *14

– 15 (Tex. App.

— Texarkana J uly 20, 2015, no pet.) (mem. op. , not designa t ed f or publicat

ion ) ( rejecting chal l enge to ev

idence that
was al legedly un tim e ly produced , noting that willful ness of State ’s non compliance
with discovery orde r “turn[ ed ] on the c redibility of the prosecuto r ’ s explanations , ”12

and stat ing that appellate c our t “ owe [d] alm ost absolute deference to the trial court ’ s
im plicit conclusio n that the prosecutor ’ s conduct was less than willful ” (quoting
Francis v. State , 428 S.W.3d 850, 855 (Tex. Crim. App. 2014) ) )

. But e ven assuming that t h e tri al co urt had abused i ts disc retion by admitting

t he p en pac k ets , the error woul d have be en ha rmless

. A viola tion of A r ticle 39.14 is a statutory e rror, a nd Rule of A p pellate Procedure 44.2(b) requires reviewing courts to disregard any nonconstitutio nal e rror that does not aff ect an ap pellant ’ s substanti al rig h ts . Tex. R. App. P. 44 .2(b); Sopko v. State , 637 S.W.3d 252, 256

– 57 (Tex. App.

— Fort Worth 2021 , no pet.)

. T h e improper admissio n of evidence affects a de fe ndant ’ s substantial rights only “ when [it] ha [s] a ‘ substantial an d inj urious effec t or influence
i n determinin g the jury ’ s verdict

. ’ ” Thomas v. S tate , 505 S.W.3d 916, 926 (Tex. Crim. App. 2016) (quoting King v. State , 953 S.W. 2d 266, 271 (Tex. Crim. App. 1997) ); Cobl e

v. State , 330 S.W.3d 253, 280 (Tex. Crim. App. 20 10 )

. H ere, whatever impact the pe n packe t might have had on the verdict , it w ould not have risen to the level of a substantial or injurious effect.
T he aggre gate of Pinkston ’ s three authenticated pen

- packet exhibits contained ( 1 ) copies o f three of Pi nk sto n ’s prior jud gmen t s of co nvictio n , ( 2 ) t wo pages of full

set s of fing erprint s correspo nding to two of the judgments , and (3) t hree pages of corresponding mugshot photos

. 8

8 E a c h pen packet also included a on e

- page declaration from a re cords
cu stodian authenti cating the ex hibit

.13

The three judgment s were duplic ative

— and the re for e harmless

— be caus e copies of th o se same judgments were admitte d as s e para te exhibits , and the separate
exhibits are not subject to preserved challenges on appeal

. 9 See Leday , 983 S.W.2d at
71 8 ( reiterating that “ overru ling an objec ti on to evidence w ill no t result in reversal
when oth er such evidence was rece ived without o b jection ” ) ; M ayo , 2021 WL 2587065,

at * 3

– 4 (h olding admissi on of challenged testimony har mless when video containing
simi lar statements was not cha llenged on ap pe al)

. T he two se ts o f fingerprints were als o duplic ati

v e. T he State enl arge d a fingerprint fr o m each of the two sets , and at
trial the State ’s fingerpri nt expert ex plai ned how the two enlarged fin gerprints
matched Pinksto n ’ s , thereby connecting him to t he tw o criminal ca se s associate d with the pen packet s . 10 The S tate submitted the two enlarged pe n

- packet fin gerprints as separate exhibi t s , and those exhib its are not challenged on a ppe al. See M ayo , 2021 WL
258706 5, at * 3

– 4

.

9 As noted supra no t e 7 , P in k ston appears to lod ge Article 39.14 challenges to several of t he judgm ents admitted durin g the puni shment phase , b ut he did no t preserve those objection s be low

. See Tex. R. App. P. 33 .1(a)

.

10 The S tate ’ s fingerprint expert noted that one of the enlarged pen

- packet fingerprints was a “ lo w
- quality print , ” and beca use “ in general , we ’ re goin g to need more quantity [of matching characteristi cs] because we h ave low quality, ” the expert
use d al l ten fingerprints in the pen packet and confirmed that al l ten wer e “ in pattern agreement
. ”14

T h is narrows the non duplicative portions of the pen

- packet exhibits to three
pages of mugshot photo s . 11 Even if we ass um e t hat the S t ate fail ed to pr oduc e such
doc uments until the day b efore t hey were admitted into evi dence , 12 and even if we

assum e that the trial court ’ s admission of these exhibits was err oneo us, Pi nks ton has

not e xplai ne d why the mugshots “ had a substantial and i n jurio us effect or influence in determining the jury ’ s [

pun ishm ent] verdict

. ” 13 Thomas , 505 S.W.3d at 926 (quoting King , 953 S.W. 2d at 271 )

. Bu t see id. ( noting that neither party has the b urde n on harm)

. It i s saf e to say the y did not. The jury saw di s turbing bod y
- camera footage in
which Officer Rodriguez was shot in the hea d and left on the ground to bleed

. T he

11 The mugshots are not inf lammatory ; they do not depict Pi nkston mak ing a pr o v ocatory fac e or gesture , nor do they depict him as un w ashed or d isheveled

. Pinkst on ’ s attire in the photo s is likewise unnoteworthy.

12 It is undi spute d t h at , the day before the parties be gan offering pun ishmen t evidence , Pinkston claimed that he d id not have copies of the pen pac kets, and although the State d isputed this c laim, it pr ovi ded p aper and electroni c cop ies of t hem at that ti me . T he Stat e o ffere d the p en pac kets into ev idence the following day.

13 T h e e n ti rety of the h arm analysi s in Pinkston ’ s appellate brief read s: “ As a
r esult [of th e admi ssion of the challenged pe n packet s] , Appellant suffered har m by the e rroneous admission of the e xhibits t hat were not pro perly prov ided to Appel lant ’ s trial coun sel t hat allowed the j ury to use same in assessing punishmen t in this matter

. ”
I n his reply br

ief, P inkston argues that the pen packets were pivotal because , to enhance his punishment range, t he Stat e was req uire d to offer proof of h is incarceratio n

— not just pr oof of his conviction

. B u t t he relevant Penal Code language
re quires evidence of “ final [] convict [ion]

. ” Tex. Penal Co de Ann. § 12.42(d).15

jury also saw Pinkston ’s s eemingly i ndiffer e nt re action when a Te xa s R anger accu s ed
him of com mitt

ing this cr

ime

. The jury heard testimony f r om Stacey that Pinkston was physically abusive , t hat he so ld and used drugs, and that he wa s i nvolved in a
g an g. T he jury receive d copies of more than ten p rio r ju dgments of conviction 14
document ing Pinkston ’ s hi story of committing , among other thing s , as s ault, theft, forgery , evadi ng ar rest , p ossession of a cont rolled substance, and pr o motion of the prostitution of a minor. T he ju ry heard about Pinkston ’ s pris on disciplinary record; a prison warden te stified tha t , according to prison records , Pi nkston as s ault ed prison
staf f on multiple occasions , he engaged in m ultiple fight s , he des troyed s ta te pr operty, and he re fused to wo rk

. The j ury heard testimony from Pin ks to n ’ s former parole
office r , who indicated th at wi thin a week of Pinkston ’ s February 2019 re l ease on parole , he had committed numerous parole violatio ns , a warrant had been is s ued for
his arres t , an d he had stop ped reporting

. 15 And the jury heard from a jail detention
officer that while Pinkston was in ja il awaiting trial , he threw a liqui d sub s t a nce

— either water or urine

— at a neighbo ring inmate ’ s cell an d had t o be moved to a more
isol ated a rea
.

14 T here was also evi dence that Pink ston had m ultiple j u ve nile adjudications

.

15 Pinkston ’ s j uvenil e parole offic er also testified

. He stated t hat while Pinkston was on paro le for juvenile delinquent conduct , he committed two new instances of delinquent conduct

.16

Given this body of evide nce, i t stretch es credu l ity to conte n d that the jury ’s

sente nc e was substantially influenced by three pages of standard mugshot photos

. W e

overr ule Pinkston ’ s second issue.
3
. T e st i mo ny fr om the S tate ’s fingerprint expert
Next , P inkston argue s that the tr ial c ourt erred by admit ting testimony from
the State ’s fin gerprin t expert , Inves tigator Ashle igh Berg

. T estif ying as an exp e rt in fingerprint analysis, In v esti ga tor Berg confirmed th at the fingerprints on Pinkston ’ s prior judgments and pen packets matc hed the fingerprints of the defendant who s at before the jury in the cou rtroom
. Pink st on claim s on app eal that Investigator B e r g ’ s tes timony was unre liable.
F or expert scientific te stimony to be admissible under Rule 702, it must be reliable

. See Tex. R. Evid. 702 ; Kelly v. State , 824 S.W.2d 568, 57 2

– 7 3 (Tex. Crim. App.1 9 92) ; see also Daub er

t v . Merrell Dow Pharm., Inc. , 50 9 U

. S. 579, 592

– 9 5 , 113 S. Ct. 2786, 27 96

– 9 8 (1993) ( establi shing similar requirement ) ; Hartman v. State , 946 S.W.2d 60, 62 (Tex. Crim. App. 1997) ( discussing K elly and Daubert

)

. And “ to be considered r eliable , [it]

must s ati sf

y three cri teria in any pa rt icu l ar case : ( a) the underlying scient ific theory
must be va lid; (b) the te chnique applying the theor y must be valid; and (c) t he technique must have been properly applied on the occa s ion in question.” Kelly , 824
S.W.2d a t 5 73

. In Kelly , t he Court of Cr imin a l Appeals listed seven no nexhausti v e factors that “ could affect a trial court ’ s determination of reliability ” :17

(1) the extent to which the u nderlying scientific theory and techniq ue a re accepted as valid by the rele va nt sci entific co mmunity

. . . ; (2) t he qualifi cations of the expert [] testifying; (3) the e xistence of literature supporting or rejecting the underlying scientific theory and t echnique; (4) the potential rate of err or of the techniqu e; (5) the availa bi lit y o f other ex perts to test and eva l uate the t echnique; (6) the clarit y with which the under lying scientific theory and technique can be explained to the court; and (7) the exp erience and skill of the person [] who a pp lied the techniq ue on the occasion i n q ues tion.
Id

. (indentation altere d

). P inkst on a s serts th at the finger print analysis condu cted by Investigator Berg was not reliable because the State fai led to offer evidence “ on the foregoing items 3, 4, 5, or 6. ” 16
Fir st, Pinks to n did not raise “ items 3 , 4, 5, [and] 6 ” as specific obje c tion s to Investigator Berg ’ s testimony at trial

. To pre serve error, a n objection to the
admissi on of ev

idence must state the spe cif ic grounds for the objection, unles s the specific grounds are ap pa rent fro m the context. Te x. R. App. P. 33.1(a)(1)(A) ; Mc K ee

v. State , No. 2

- 06

- 203

- CR, 2007 WL 2894 96, at * 2

– 3 (T ex. App.

— Fort Worth Feb. 1,
20 07, no pet.) (per curiam) (mem. op ., not desi gna te d for publicatio n ) ; see Scherl v.
State , 7 S.W.3d 650, 652 (Tex. App.

— Te xark ana 1999, pe t. ref’d)

. Error is not
preser v ed when a party objects to an improper predicate but fai ls to inform t he trial

court of exactly ho w the predicate is def icient

. Mc Kee , 2007 WL 2894 96, at *3 ; Scherl , 7 S.W.3d at 652 ; see Bird v. Stat e, 69 2 S .W.2d 65, 70 (Te x. Crim. App. 198 5)

. “ Rule

16 We assume without deciding that Pinksto n adequa t e ly briefed this iss ue. See Tex. R. App. P. 38.1(i).18

702 , Daube rt

, [ a nd] Kelly

. . . cover numerous requirements and guidelines for the
admission of e xpert testimony , ” so a br o ad objection ba se d on Rule 702 , D aubert , or
K elly is effectively a general object ion t o a n improper predi cate
. Scherl , 7 S.W.3d at
652

. I n Scher

l v. State , for example , the defenda nt objected to intoxilyzer evidence as

“ inadmissi ble under Rule 702, Daubert , Kel ly , an d Har

tman , ” and the Texarka na Court

o f Appeal s held that this was ins uffic ient to preserve er ror beca use “ [a] n objection
bas e d on Rul e 702 and t hese cases alo ne [wa] s effectively a general objection to an improper pred icate

. ” Id. W e held simil arly in McKee v. State , c on cluding that the
defendant failed to preserve her com plain t tha t a troop er wa s not qualif ied to give
expert t estimony on the defendant ’ s use of a vehicle as a deadly weapon. 2007 WL 289496, a t * 2

– 3

. The defendant objected to th e trooper ’s testimony as ha ving an improper predicate and as a legal conclusion, and a lthough the contex t of her objection clarified th a t it was under Rule 702, “ Rule 702 and Daub ert cover num erous requirements and guidelines for the admi ssion of expert t estimony , ” an d “[o] bjections
ba sed simply on [R] ule 702 and Daubert alone a re, in ef fec t, general objecti ons to an improper predicate an d do not adeq uately inform the trial court of any specifi c complaint upon which it is to rule

. ” Id. at * 1

– 3

. Th e d efendant thus fai le d to preserve he r specific compla int about the troope r ’ s e xpert qualific ations

. Id. at *3

.19

Here, Pinkston “request [ed] a 705( b) h earing 17 with regard t o any t ype of purported fin gerprint evidence , ” and during th at h earin g, he cross

- examined
Inve st igator Berg on a variety of issue s , including her qualific ations , ho w long her
anal ysis took, wheth er her analysis had been pe er

- r e viewed, wh ether inherent b ias

c ould impact fingerprint a na lysis, whether fin gerprint analysis was obj ective or subj ective, where the ACE

- V method of fingerprin t analysis that she had used came from, and how man y c ommon alitie s were required for two finger p r ints to be
considered a match

. A t the conclusion of the hearin g , Pinkston argued that he

“ d [i d ] n ’ t think that we ever g [o] t anywhere by clear and c onvincing evidence passing
over the Kelly fac tors and/o r the Daubert factors based on the testimon y of the

w itness

. ” 18 H e d id not identify what Kelly facto rs he tho ught were la cking , nor did he specify the predicate deficiency that alleged ly rendered Investigator Berg ’s testimony
inadmiss ible

. And g

i ven the sc ope of his question s o n cross

- ex amination , the spec i fic ground s for h is objection were not cle ar from the co ntext. See Tex. R. App. P.
33.1 (a)(1)(A)

. Pinkston t hu s waived hi s app ellate complaint that th e alleged absence

17 S ee Tex. R. Evid. 705(b) ( “ Before a n expert states an opinion or discloses the underlying facts o r data, an adverse party

. . . i n a criminal case must

. . . be permitted to e xamin e the ex pert about t h e underlying facts or data. This examination mu st take place outside th e jury ’ s hearing. ” ).

18 When the trial court ruled that it would al low Investigato r Berg ’s expert t estimony , Pinks ton obtained a running obje ction to the finger print testimo n y f or
“ eve r y t hing that ’s been raised o utside the jury ’s presence

. ”20

of “ [ Kelly ] it ems 3, 4, 5, or 6 ” undermined th e reliab ility of Investigator B e rg ’ s

te s timony

. E ven if Pinkston had preserved hi s com plaint , though, it would be o ff the
mark. Th e seven Kell

y fa ctors are conside r ations “that could ”

— but might not

— “ affec t
a trial court ’s determin ation o f reliability

. ” Kelly , 824 S .W.2d at 573 (emp hasis add e d)

. The Kel ly factors do not serve as a man datory check list ; e videnc e of every factor is not

r equired in every case, nor does the ab sence of a single factor automatic ally render the

ex pert ’ s t estimony unreliable under Kelly

. Cf

. Vela v. State , 209 S.W.3 d 128, 134 (Tex.
Cri m. App. 2006) (

notin g tha t “[t] he rel iability inquiry is

. . . a flexible on e ” that “ even if the traditional Kelly reliability fact ors do not perfec tly apply t o p arti cular te stimony, the proponent is not e xcused from proving its reliabi l ity ” ); Wolfe v. Sta te , 459 S.W.3d 201, 205 (

Tex. App.

— Fo rt Worth 2015) ( similar, citing Vela ) , aff ’ d , 509 S.W.3 d 325 (Tex. Crim. App. 2017)

. Plus, P inkston himself e licited tes timony from Inves tigator Berg on several of
the Kelly factors that he claims ar e missing . On cross

- examination, h e a sked her about
the rate of e r ror (fac tor 4)

— which , accor ding to I nvestig ator Berg, “ [s]tu d i es have
sho wn . . . can be as high as 7 percent [erro ne ous exclus ions] ”

— an d he had he r identify the person who had ver ified her analysis of Pinkston ’ s prints (factor 5)

—

“ D a vid Taylor, who is also a certif ied latent print examiner

. ” See Kelly , 824 S.W .2d at
573

. As for fa ct or 6, Inve stigator Berg ’ s detailed description of the ACE

- V analysis21

was itse lf a de mo nstra t

ion of t he “ clar i ty with which the underlying scie ntific theory

an d techn ique c [ould] be explained to the court
. ” Id.
B ec ause Pinkston did no t preserve this third issue, and because it would have
b een fruitles s even if i t had been preserved , w e over rule it

. 4
. T estimo n y regarding Pinkston ’ s gang affi l iati on In his fo urth an d final issue , Pinkston chal leng es the admission of te stimony
from the State ’ s gan g exp er t , who interpreted Pinkston ’ s photographed , gang

- related

tatto os as indicative of his ga ng a f filiation. Pinks t on claim s that his alleged gang

a ffiliation “ was irrelev ant , ” that th e gang expert was speculating about hi s gang affiliation based o n “no evidence , ” t hat the expert testimo ny li nking him to a ga ng

wa s “ more prejudicial than probative, ” that such t estimon y was inadmissi ble under Beasley v. State , 902 S. W.2d 452 (Tex. Cri m. App. 1995) (plurality op.), supe rseded by statute as recognized in B eham v. State , 559 S.W.3d 474, 479 (Tex . Cri m. App. 2018 ) , 19 and
that the expert ’ s use o f his ta tto os to link hi m to a g ang violated h is co nstitut ional right “ to place any tatt oo of an y sort on his body and associ ate with a nyone he
chooses

. ” 20

19 A s the C o urt of Criminal Appeals has clarified, “ Beasley is not binding auth ority. ” B eham , 559 S.W. 3d at 479 ( noting tha t Beasl

ey is “ a plurality opinion construing an iterati o n of Article 3 7 .07 tha t was more narrowly drafted than the present la w ”)

.

20 At trial, Pinkston objected to t he admission of phot o s of his gang

- relat ed tat t oos “ under the 1s t Ame ndment of breach i ng the free d om of speech, as well as the 14th Amendment for due process, as well as Article 1, Section 8 of the Texas22

But t he gang expert was not the only person to testi fy that Pinkston ’ s gang

related tat toos evidenced h is gang affiliation

. After t h e ga ng expert took the sta nd , Stac e y tes tif

ied t hat she “ kn[e]w [Pinkston] to be i nvo lved in a gang , ” and w hen she
was asked “ [h]ow, ” she responded that “ [ i]t ’ s tatted on his body. ” Pinkston di d not object to this duplicativ e t esti mony , nor do es h e ch all e nge it on appeal

. 21 Eve n i f the
trial court had erre d b y admitting the gan g e xpert ’s testimony , then, the err o r was rendered harmless by S tacey ’s unobjected

- to testimo ny of the same fact

. See C ook , 2023 WL 152 984, at *5 ; c f. Parks v. State , No . 02

- 22

- 000 1 1

- CR, 2023 WL 2325506,

at * 9 (Tex. App.

— Fort Worth Mar. 2, 2023, no pet. ) (mem. op., not designated for

Constitution, the right to publi sh on any subject, and as well as o bjection s under due
cours e of law under Article 1 , Sec tion 19. ” But he di d no t obj ect to the exhibits as irrele vant or a s more prejudicial than p robative

.

21 Pinkston secured a running objection “ throughout the entirety of [ the gang detec tive ’s] testimony, ” but the running objection did not ext en d to Stacey ’ s testimo ny. See B lue v. S tate , No. 02

- 17

- 00265

- CR, 2018 WL 6844134, at *7

– 8 (Tex

. App.

— Fort Worth D ec. 31, 2018, pet. ref’d) (mem. op., not designated for publicatio n) (

h olding that ru nning objection asserted on multiple grounds , some of wh ich wer e specific to wi tness, did not ext end to different wi tness ’s testimon y on same issue ) ; Re id v. State , No. 1 0

- 14

- 00107

- CR, 2015 WL 6584361, at * 2

– 3 (Tex. App.

— Waco Oct. 29, 20 15, p et. ref’d) (mem. op., not designated for p ublication) ( noting that ru nning o bjecti on “ on thi s issue ” ra ised du ring on e witness ’s testimony did not extend to similar t estimony from thre e other witnesses) ; Warner v. State , No. 2

- 07

- 464

- CR, 2009 WL 235 6861, at * 2

– 3 (Tex. App.

— Fort Worth July 30, 2009, pet. ref’d) (mem. op., no t desi gnated for publi cation) ( hol ding t hat running objection s raised during one witness ’s testim ony did not extend to similar t estimony from another witness ) ; cf. Sattiewhite v. S tate , 786 S.W.2d 271, 283 n.4 (Tex. Crim. App. 1989) ( cautioning that “ a n ad vocate who lodges a ru nning object ion sh ould take pains to make sure it does not encompass too br oad a reach of sub j ect matter over too broad a time or over diffe rent witnesses ”)

.23

publication) (holding admission of c hallenged statement harmless because the same
fact came in through unchallenged st atement ) ; Mayo , 202 1 WL 258706 5 , at * 3

– 4 (h olding admi ssio n of challenged testimony har mless when video containing similar statements was not challenged on appeal) ; Redm ond , 629 S.W.3d at 546 n.14 ( h olding
admiss ion of testi mony regarding unadju d icated robber ies harmless when photo
de p i cti ng r obbery was not objected to)

. Moreover , a reasonable ju ror could inf er that Pinkston had gang

- related “tatt[ooing] on his b ody ” by exam ining th e tattoo phot o s for the mselves

. S uch phot os depi c ted , for exam ple, the word “ HOOVA ” in large block lett e rs across Pinkston ’ s s to mach and the phra se “ C rippin ” i n large block l etters across his back. Although Pi nkston objected to testimony r egardin g these photo s at trial , h is ap peal does not challenge the photos ’ admiss ion into evidence

. Se e Mayo , 202 1 WL 2 5 87065,

at *4

. B ecause the gang expert ’ s testimony was duplicativ e of other , unchallenged
evidence , w e overrule Pinkston ’ s final i ssue.24 I II. Conclusion
H a ving overrul e d all four of Pink ston ’s i s sues, we affirm the trial court ’s jud gments of co nv

ic tion. See Tex. R. App. P. 4 3. 2 (a).

/s/ Bonnie Sudderth
Bonnie Sudd erth Chief Justice

Do Not Publish Tex. R. App. P. 47.2(

b)
De livered : April 20, 2023