In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-22-00076-CR

No. 02-22-00077-CR

___________________________

On Appeal from the 462nd District Court

Denton County, Texas

Trial Court Nos. F19-3852-211, F19-3853-211

Before Sudderth, C.J.; Kerr and Womack, JJ.

Memorandum Opinion by Chief Justice Sudderth

ANTWON PINKSTON, Appellant

V.

THE STATE OF TEXAS
2

MEMORANDUM OPINION

During a traffic stop, Appellant Antwon Pinkston opened fire on two police

officers, missing one and shooting the other in the head. A jury found Pinkston guilty 

of two counts of aggravated assault of a public servant, and it assessed his punishment 

at confinement for life on one count and for 35 years on the other.

Pinkston argues that (1) the disjunctive nature of one of his two jury charges

authorized a nonunanimous verdict; and (2) the trial court erred by admitting three 

types of punishment evidence—penitentiary packets that Pinkston claims were not

timely disclosed, allegedly unreliable testimony from a fingerprint expert, and allegedly 

irrelevant testimony from a gang expert linking Pinkston’s tattoos to a gang affiliation. 

Because there is binding Court of Criminal Appeals precedent rejecting Pinkston’s 

first argument, and because his three evidentiary challenges are either unpreserved or 

concern harmless error, we will affirm.

I. Background

Pinkston committed his crimes during an October 2019 traffic stop, much of 

which was recorded on police body-camera footage.

Pinkston was riding in the front passenger seat of a car driven by Michelle 

Stacey when, around midnight, Denton Police Officer Urban Rodriguez stopped the

car for taillight and registration issues. Stacey pulled over in a Taco Bell parking lot,

and when Officer Rodriguez approached the vehicle to speak with her, she got out of 

the vehicle, then sat back down sideways in the driver’s seat with her door open and 
3

her body facing the officer. Officer Rodriguez’s light illuminated Stacey’s face for 

most of their video-recorded conversation, but the light did not extend to Pinkston’s 

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

When Officer Rodriguez asked for identification, Pinkston provided his, but

Stacey told the officer that her wallet and driver’s license had been stolen. Smelling

marijuana in the car, Officer Rodriguez asked if Stacey and Pinkston had been 

smoking the substance, and he indicated that he intended to search the vehicle. As 

the officer stood talking with Stacey about the marijuana, his body camera captured

Pinkston’s shadow shifting and moving in the background. Moments later, the body 

camera jerked and the footage was obscured as Officer Rodriguez yelled, “Hands up

now! Hands up now! Move your head lady!” A series of gunshots rang out, and 

Officer Rodriguez fell to the ground, dropping Pinkston’s driver’s license next to him.

Officer Cole was walking up to assist with the traffic stop when Officer 

Rodriguez began yelling for “[h]ands.” After hearing the gunshots and seeing Officer

Rodriguez fall, Officer Cole took cover behind his patrol vehicle and exchanged 

gunfire with Pinkston. Stacey then maneuvered her vehicle around Officer 

Rodriguez’s bleeding body, and she and Pinkston fled the scene. When Officer Cole

ran up to Officer Rodriguez, he saw that “his skull was gone . . . [and h]is brain was 

exposed.” Again, Officer Cole’s perspective was recorded on his body-camera 

footage.
4

Stacey and Pinkston were apprehended within an hour. They were riding in the 

same, bullet-riddled car, and they both had gunshot wounds. When a Texas Ranger 

spoke with Pinkston in an interview room and accused him of shooting a police 

officer, Pinkston had a muted reaction—he squinted, looked away, and lethargically 

mumbled that he was cold, wanted to call his grandmother, and needed to use the 

restroom.

1

Officer Rodriguez’s gunshot wounds to the head and the leg resulted in

permanent injuries. He underwent five brain surgeries; the surgeons removed a 

portion of his skull, placed a permanent titanium plate, and installed a permanent 

shunt to drain excess brain fluid. His leg wound required an additional surgery to 

place a permanent rod in his femur. Officer Rodriguez required rehabilitation to learn

how to eat, talk, and walk again. At the time of Pinkston’s 2022 trial—more than two

years after the traffic stop—Officer Rodriguez was still in rehabilitation, he still could 

not read, he still had language deficits, he still suffered periodic seizures, and he still

had limited use of the right side of his body. 

1The remainder of Pinkston’s interview was much the same. The Texas Ranger 

attempted to talk to Pinkston about the traffic stop, but Pinkston repeatedly looked 

away and mumbled about being cold. When the Texas Ranger provided a coat to 

warm Pinkston, he continued to mumble that he was cold and that his arm hurt. He 

repeatedly turned away from the Texas Ranger to curl up in the interview chair in an 

attempt to go to sleep. The Texas Ranger asked Pinkston “what kind of drugs [he

was] on,” but Pinkston mumbled that he was on “no drugs at all.”
5

Pinkston was indicted on two counts of first-degree felony aggravated assault 

of a public servant, with each count enhanced by two prior felony convictions. See 

Tex. Penal Code Ann. §§ 12.42(d), 22.02(a), (b)(2)(B). At trial, Pinkston’s theory of 

the case was that Stacey had been the gunman.2 Stacey testified to the contrary. 

Although she told the jury that she did not remember seeing Pinkston with a gun that

night, she knew that she did not have a gun, so “[c]ommon sense” told her that 

Pinkston was the shooter. Her testimony was consistent with Officer Rodriguez’s 

body-camera footage in the moments before the shooting, the gunshot trajectory 

analysis performed on Stacey’s vehicle, the locations and patterns of Stacey’s and 

Pinkston’s gunshot wounds, and Pinkston’s calm and disinterested response when the

Texas Ranger accused him of the crime.

At the end of the guilt–innocence phase, the jury received two charges—one 

for each cause number. The first charge, which concerned the offense against Officer 

Cole, authorized a guilty verdict if the jury found that Pinkston 

“threaten[ed] . . . imminent bodily injury by shooting a firearm towards . . . or pointing 

a firearm at, towards, or in the direction of [Officer] Cole, . . . [while] us[ing] or 

exhibit[ing] a deadly weapon, to wit: a firearm.” See id. § 22.02(a)(2). The second 

charge, which addressed Pinkston’s assault of Officer Rodriguez, was slightly 

2Officer Rodriguez could not recall who shot him or where the shots came 

from. Officer Cole could not see the gunman, but he could tell that the shooting 

came from inside Stacey’s vehicle.
6

different; it contained disjunctive paragraphs that authorized a guilty verdict if the jury 

found that Pinkston either (1) “cause[d] serious bodily injury to [Officer] Rodriguez

by shooting [him] with a firearm,” or (2) “cause[d] bodily injury to [Officer] Rodriguez 

by shooting [him] with a firearm . . . [while] us[ing] or exhibit[ing] a deadly weapon, to 

wit: a firearm.” See id. § 22.02(a). The jury returned guilty verdicts on both counts.

During the punishment phase, the trial court admitted into evidence, among 

other things, (1) penitentiary packets (commonly referred to as “pen packets”) that 

Pinkston claimed the State had not timely disclosed; (2) testimony from a fingerprint 

expert, which Pinkston objected to based on “the Kelly factors and/or the Daubert

factors”; and (3) testimony from a gang expert who pointed out components of

Pinkston’s photographed tattoos that led him to believe that Pinkston was a member 

of the “5-Deuce Hoova Crips.”

3

 After hearing the evidence, the jury found all of the

prior-felony enhancements to be true, and it returned a verdict of life in prison for the 

aggravated assault of Officer Rodriguez and 35 years in prison for the aggravated 

assault of Officer Cole. See id. §§ 12.32, 12.42(d), 22.02(b)(2)(B).

3The gang expert testified that, after looking at the photos of Pinkston’s 

tattoos, he checked the gang database “to support [his] initial opinion or [his] theory 

that [Pinkston] was a member of the 5-Deuce Hoova Crips.”
7

II. Discussion

On appeal, Pinkston challenges (1) the disjunctive nature of his jury charge, and

(2) the admission of his pen packets, testimony from the fingerprint expert, and 

testimony from the gang expert. 

A. The trial court did not err by submitting a disjunctive jury charge. 

In his first issue, Pinkston contends that the trial court erred by submitting a 

disjunctive jury charge containing two alternative theories of Officer Rodriguez’s

aggravated assault—causing serious bodily injury and causing bodily injury while using 

or exhibiting a deadly weapon. See id. § 22.02(a). Pinkston claims that the two 

theories reflect different offenses because, according to him, aggravated assault based 

on serious bodily injury is result-oriented while aggravated assault based on bodily 

injury with the use or exhibition of a deadly weapon is both conduct-oriented and

result-oriented. 

The Court of Criminal Appeals rejected this argument in Landrian v. State. 268 

S.W.3d 532, 532–42 (Tex. Crim. App. 2008). There, the jury charge authorized a 

conviction for aggravated assault if the jury found that the defendant either 

(1) intentionally or knowingly caused bodily injury using a bottle as a deadly weapon

or (2) recklessly caused serious bodily injury by throwing a bottle. Id. at 533–34. The 

court of appeals held that this charge authorized a nonunamious verdict, id. at 535,

but the Court of Criminal Appeals disagreed, id. at 536–42. The court held that

“jurors need [not] be unanimous about which aggravating factor or element that they 
8

find[;] . . . . the defendant may be convicted [of aggravated assault] if each juror 

concludes that at least one of the aggravating factors or elements exist.” Id. at 538–

39; see id. at 536–42 (explaining that, putting aside assault by threat, aggravated assault 

is result-oriented, the actus reus is “causing bodily injury,” and both aggravating 

circumstances in Section 22.02 involve the use of a deadly weapon).4

Although Pinkston takes issue with Landrian’s rationale,5 we are not at liberty to 

disregard binding precedent from the Court of Criminal Appeals. See Weaver v. State, 

No. 02-21-00081-CR, 2022 WL 2978730, at *10 (Tex. App.—Fort Worth July 28, 

2022, pet. ref’d) (mem. op., not designated for publication) (noting that “a decision of 

the [C]ourt of [C]riminal [A]ppeals is binding precedent, [and] we are compelled to 

comply with its dictates” (quoting State v. Stevenson, 993 S.W.2d 857, 867 (Tex. App.—

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

4Whether the jury found that Pinkston caused serious bodily injury or that he

caused bodily injury while using or exhibiting a deadly weapon, “both of these means 

of committing aggravated bodily assault 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, which is [statutorily defined to include] ‘anything that in the manner of its 

use or intended use is capable of causing death 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 

Ann. § 1.07(a)(17)(B); Landrian, 268 S.W.3d at 538 (quoting Blount).

5Pinkston also argues—without explanation—that the Landrian holding was 

dicta. We disagree. Although Landrian involved alternative mens rea findings as part 

of the alternative aggravating elements, the Court of Criminal Appeals did not confine 

its holding or rationale to instances of alternative mens rea; it addressed alternative 

aggravating elements. See Landrian, 268 S.W.3d at 536–42.
9

S. Ct. 703, 706 (1982) (per curiam) (“[U]nless we wish anarchy to prevail within

the . . . judicial system, a precedent of [the higher] Court must be followed by the

lower . . . courts.”).

We overrule Pinkston’s first issue.

B. The trial court’s evidentiary rulings were not abuses of discretion.

Pinkston’s three other appellate issues question three of the trial court’s 

evidentiary rulings.

1. Standard of review

We review a trial court’s decision to admit or exclude evidence for an abuse of 

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

955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Redmond v. State, 629 S.W.3d 534, 541 (Tex. 

App.—Fort Worth 2021, pet. ref’d). The trial court does not abuse its discretion by 

admitting challenged evidence unless its determination lies outside the zone of 

reasonable disagreement. Wells, 611 S.W.3d at 427; Redmond, 629 S.W.3d at 541. And 

even if a trial court abuses its discretion by admitting evidence, that error must be 

preserved before a defendant can complain about it on appeal. See Tex. R. App. P. 

33.1(a). Furthermore, even preserved error in the admission of evidence will not 

result in a reversal without a showing of harm. See Tex. R. App. P. 44.2; Cook v. State, 

No. PD-0850-21, 2023 WL 152984, at *4–5 (Tex. Crim. App. Jan. 11, 2023). And no 

harm occurs “when a defendant fails to object at trial to cumulative evidence of the 

same fact . . . or when a defendant fails to challenge other, cumulative evidence of the 
10

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 for 

publication); see Cook, 2023 WL 152984, at *5 (“The erroneous admission of evidence 

‘will not result in reversal when other such evidence was received without objection, 

either before or after the complained-of ruling.’” (quoting Leday v. State, 983 S.W.2d 

713, 718 (Tex. Crim. App. 1998))). 

2. Allegedly undisclosed pen packets

Pinkston claims that the trial court erred by admitting his three pen packets6

into evidence during the punishment phase because, according to him, the State

violated Article 39.14 of the Code of Criminal Procedure by failing to disclose the pen

packets until the day before they were offered into evidence.

7

 See Tex. Code Crim. 

Proc. Ann. art. 39.14(a).

6“A penitentiary packet or ‘pen packet’ consists of authenticated records from 

the Texas Department of Corrections or other penal institution regarding a person’s 

prior convictions.” Carkin v. State, No. 04-99-00411-CR, 2001 WL 166374, at *2 (Tex. 

App.—San Antonio Feb. 21, 2001, no pet.) (not designated for publication). 

7Pinkston also claims that the trial court should have applied Article 39.14 to 

exclude seven other punishment exhibits: six judgments of conviction and one

summary of the disciplinary matters that Pinkston was involved in while he was in 

prison. But at trial, Pinkston’s Article 39.14 objection was limited to the pen packets, 

and he did not claim that these seven exhibits had not been timely produced. Even 

on appeal, it is unclear if Pinkston is alleging that these seven exhibits were not timely 

produced. In fact, he appears to concede that at least some of them were. Either 

way, Pinkston did not preserve an Article 39.14 challenge to the admission of the

seven non-pen-packet exhibits. See Tex. R. App. P. 33.1(a). Furthermore, one of the 

seven exhibits—the summary of prison disciplinary matters—was not admitted into 

evidence at all; it was admitted for record purposes only.
11

But the State’s alleged failure to disclose the pen packets was just that: alleged. 

As Pinkston acknowledges, there was a factual dispute on this issue—Pinkston 

claimed that the three pen packets had not been timely produced, but the State 

claimed that they had. In this context, the trial court was “the sole trier of fact and

judge of the credibility of the witnesses and the weight to be given their testimony,” 

and it resolved the fact issue in the State’s favor. State v. Ross, 32 S.W.3d 853, 855 

(Tex. Crim. App. 2000); see Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 

2006) (noting that “an appellate court will . . . [‘]assume that the trial court made 

implicit findings of fact that support its ruling as long as those findings are supported 

by the record’” (quoting Ross, 32 S.W.3d at 855)). We must yield to that 

determination. See Guzman, 955 S.W.2d at 89 (“[A]s a general rule, the appellate 

courts . . . should afford almost total deference to a trial court’s determination of the 

historical facts . . . based on an evaluation of credibility and demeanor.”); Barlow v.

State, No. 05-21-00392-CR, 2022 WL 16847694, at *4–6 (Tex. App.—Dallas Nov. 10, 

2022, no pet.) (mem. op., not designated for publication) (yielding to trial court as 

“the sole judge of witness credibility” when trial court heard evidence on alleged 

Article 39.14 violation and denied motion for new trial); Brown v. State, No. 06-14-

00115-CR, 2015 WL 4396378, at *14–15 (Tex. App.—Texarkana July 20, 2015, no 

pet.) (mem. op., not designated for publication) (rejecting challenge to evidence that 

was allegedly untimely produced, noting that willfulness of State’s noncompliance 

with discovery order “turn[ed] on the credibility of the prosecutor’s explanations,”
12

and stating that appellate court “owe[d] almost absolute deference to the trial court’s 

implicit conclusion that the prosecutor’s conduct was less than willful” (quoting 

Francis v. State, 428 S.W.3d 850, 855 (Tex. Crim. App. 2014))). 

But even assuming that the trial court had abused its discretion by admitting 

the pen packets, the error would have been harmless. A violation of Article 39.14 is a 

statutory error, and Rule of Appellate Procedure 44.2(b) requires reviewing courts to 

disregard any nonconstitutional error that does not affect an appellant’s substantial 

rights. Tex. R. App. P. 44.2(b); Sopko v. State, 637 S.W.3d 252, 256–57 (Tex. App.—

Fort Worth 2021, no pet.). The improper admission of evidence affects a defendant’s 

substantial rights only “when [it] ha[s] a ‘substantial and injurious effect or influence

in determining the jury’s verdict.’” Thomas v. State, 505 S.W.3d 916, 926 (Tex. Crim.

App. 2016) (quoting King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)); Coble

v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010). Here, whatever impact the pen

packet might have had on the verdict, it would not have risen to the level of a 

substantial or injurious effect.

The aggregate of Pinkston’s three authenticated pen-packet exhibits contained

(1) copies of three of Pinkston’s prior judgments of conviction, (2) two pages of full 

sets of fingerprints corresponding to two of the judgments, and (3) three pages of 

corresponding mugshot photos.

8

8Each pen packet also included a one-page declaration from a records 

custodian authenticating the exhibit.
13

The three judgments were duplicative—and therefore harmless—because 

copies of those same judgments were admitted as separate exhibits, and the separate

exhibits are not subject to preserved challenges on appeal.

9

 See Leday, 983 S.W.2d at

718 (reiterating that “overruling an objection to evidence will not result in reversal 

when other such evidence was received without objection”); Mayo, 2021 WL 2587065,

at *3–4 (holding admission of challenged testimony harmless when video containing 

similar statements was not challenged on appeal). The two sets of fingerprints were 

also duplicative. The State enlarged a fingerprint from each of the two sets, and at

trial the State’s fingerprint expert explained how the two enlarged fingerprints 

matched Pinkston’s, thereby connecting him to the two criminal cases associated with 

the pen packets.

10

 The State submitted the two enlarged pen-packet fingerprints as 

separate exhibits, and those exhibits are not challenged on appeal. See Mayo, 2021 WL

2587065, at *3–4.

9As noted supra note 7, Pinkston appears to lodge Article 39.14 challenges to

several of the judgments admitted during the punishment phase, but he did not

preserve those objections below. See Tex. R. App. P. 33.1(a).

10The State’s fingerprint expert noted that one of the enlarged pen-packet 

fingerprints was a “low-quality print,” and because “in general, we’re going to need 

more quantity [of matching characteristics] because we have low quality,” the expert

used all ten fingerprints in the pen packet and confirmed that all ten were “in pattern 

agreement.”
14

This narrows the nonduplicative portions of the pen-packet exhibits to three

pages of mugshot photos.

11 Even if we assume that the State failed to produce such

documents until the day before they were admitted into evidence,

12 and even if we 

assume that the trial court’s admission of these exhibits was erroneous, Pinkston has 

not explained why the mugshots “had a substantial and injurious effect or influence in

determining the jury’s [punishment] verdict.”

13 Thomas, 505 S.W.3d at 926 (quoting

King, 953 S.W.2d at 271). But see id. (noting that neither party has the burden on

harm). 

It is safe to say they did not. The jury saw disturbing body-camera footage in 

which Officer Rodriguez was shot in the head and left on the ground to bleed. The 

11The mugshots are not inflammatory; they do not depict Pinkston making a 

provocatory face or gesture, nor do they depict him as unwashed or disheveled. 

Pinkston’s attire in the photos is likewise unnoteworthy.

12It is undisputed that, the day before the parties began offering punishment 

evidence, Pinkston claimed that he did not have copies of the pen packets, and

although the State disputed this claim, it provided paper and electronic copies of them

at that time. The State offered the pen packets into evidence the following day. 

13The entirety of the harm analysis in Pinkston’s appellate brief reads: “As a 

result [of the admission of the challenged pen packets], Appellant suffered harm by 

the erroneous admission of the exhibits that were not properly provided to 

Appellant’s trial counsel that allowed the jury to use same in assessing punishment in 

this matter.”

In his reply brief, Pinkston argues that the pen packets were pivotal because, to 

enhance his punishment range, the State was required to offer proof of his

incarceration—not just proof of his conviction. But the relevant Penal Code language 

requires evidence of “final[] convict[ion].” Tex. Penal Code Ann. § 12.42(d). 
15

jury also saw Pinkston’s seemingly indifferent reaction when a Texas Ranger accused 

him of committing this crime. The jury heard testimony from Stacey that Pinkston 

was physically abusive, that he sold and used drugs, and that he was involved in a 

gang. The jury received copies of more than ten prior judgments of conviction14

documenting Pinkston’s history of committing, among other things, assault, theft, 

forgery, evading arrest, possession of a controlled substance, and promotion of the 

prostitution of a minor. The jury heard about Pinkston’s prison disciplinary record; a 

prison warden testified that, according to prison records, Pinkston assaulted prison 

staff on multiple occasions, he engaged in multiple fights, he destroyed state property, 

and he refused to work. The jury heard testimony from Pinkston’s former parole 

officer, who indicated that within a week of Pinkston’s February 2019 release on 

parole, he had committed numerous parole violations, a warrant had been issued for 

his arrest, and he had stopped reporting.

15 And the jury heard from a jail detention

officer that while Pinkston was in jail awaiting trial, he threw a liquid substance—

either water or urine—at a neighboring inmate’s cell and had to be moved to a more 

isolated area. 

14There was also evidence that Pinkston had multiple juvenile adjudications.

15Pinkston’s juvenile parole officer also testified. He stated that while Pinkston 

was on parole for juvenile delinquent conduct, he committed two new instances of 

delinquent conduct.
16

Given this body of evidence, it stretches credulity to contend that the jury’s 

sentence was substantially influenced by three pages of standard mugshot photos. We 

overrule Pinkston’s second issue. 

3. Testimony from the State’s fingerprint expert

Next, Pinkston argues that the trial court erred by admitting testimony from 

the State’s fingerprint expert, Investigator Ashleigh Berg. Testifying as an expert in 

fingerprint analysis, Investigator Berg confirmed that the fingerprints on Pinkston’s 

prior judgments and pen packets matched the fingerprints of the defendant who sat 

before the jury in the courtroom. 

Pinkston claims on appeal that Investigator Berg’s testimony was unreliable. 

For expert scientific testimony to be admissible under Rule 702, it must be reliable. 

See Tex. R. Evid. 702; Kelly v. State, 824 S.W.2d 568, 572–73 (Tex. Crim. App.1992); see 

also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592–95, 113 S. Ct. 2786, 2796–98

(1993) (establishing similar requirement); Hartman v. State, 946 S.W.2d 60, 62 (Tex. 

Crim. App. 1997) (discussing Kelly and Daubert). And “to be considered reliable, [it] 

must satisfy three criteria in any particular case: (a) the underlying scientific theory 

must be valid; (b) the technique applying the theory must be valid; and (c) the 

technique must have been properly applied on the occasion in question.” Kelly, 824 

S.W.2d at 573. In Kelly, the Court of Criminal Appeals listed seven nonexhaustive 

factors that “could affect a trial court’s determination of reliability”:
17

(1) the extent to which the underlying scientific theory and technique 

are accepted as valid by the relevant scientific community . . . ; 

(2) the qualifications of the expert[] testifying; 

(3) the existence of literature supporting or rejecting the underlying 

scientific theory and technique;

(4) the potential rate of error of the technique; 

(5) the availability of other experts to test and evaluate the technique;

(6) the clarity with which the underlying scientific theory and 

technique can be explained to the court; and 

(7) the experience and skill of the person[] who applied the technique 

on the occasion in question. 

Id. (indentation altered). Pinkston asserts that the fingerprint analysis conducted by 

Investigator Berg was not reliable because the State failed to offer evidence “on the 

foregoing items 3, 4, 5, or 6.”

16

First, Pinkston did not raise “items 3, 4, 5, [and] 6” as specific objections to 

Investigator Berg’s testimony at trial. To preserve error, an objection to the 

admission of evidence must state the specific grounds for the objection, unless the 

specific grounds are apparent from the context. Tex. R. App. P. 33.1(a)(1)(A); McKee

v. State, No. 2-06-203-CR, 2007 WL 289496, at *2–3 (Tex. App.—Fort Worth Feb. 1, 

2007, no pet.) (per curiam) (mem. op., not designated for publication); see Scherl v.

State, 7 S.W.3d 650, 652 (Tex. App.—Texarkana 1999, pet. ref’d). Error is not 

preserved when a party objects to an improper predicate but fails to inform the trial 

court of exactly how the predicate is deficient. McKee, 2007 WL 289496, at *3; Scherl, 

7 S.W.3d at 652; see Bird v. State, 692 S.W.2d 65, 70 (Tex. Crim. App. 1985). “Rule 

16We assume without deciding that Pinkston adequately briefed this issue. See

Tex. R. App. P. 38.1(i).
18

702, Daubert, [and] Kelly . . . cover numerous requirements and guidelines for the 

admission of expert testimony,” so a broad objection based on Rule 702, Daubert, or

Kelly is effectively a general objection to an improper predicate. Scherl, 7 S.W.3d at

652.

In Scherl v. State, for example, the defendant objected to intoxilyzer evidence as 

“inadmissible under Rule 702, Daubert, Kelly, and Hartman,” and the Texarkana Court 

of Appeals held that this was insufficient to preserve error because “[a]n objection 

based on Rule 702 and these cases alone [wa]s effectively a general objection to an 

improper predicate.” Id. We held similarly in McKee v. State, concluding that the

defendant failed to preserve her complaint that a trooper was not qualified to give 

expert testimony on the defendant’s use of a vehicle as a deadly weapon. 2007 WL 

289496, at *2–3. The defendant objected to the trooper’s testimony as having an 

improper predicate and as a legal conclusion, and although the context of her

objection clarified that it was under Rule 702, “Rule 702 and Daubert cover numerous 

requirements and guidelines for the admission of expert testimony,” and “[o]bjections 

based simply on [R]ule 702 and Daubert alone are, in effect, general objections to an 

improper predicate and do not adequately inform the trial court of any specific 

complaint upon which it is to rule.” Id. at *1–3. The defendant thus failed to 

preserve her specific complaint about the trooper’s expert qualifications. Id. at *3.
19

Here, Pinkston “request[ed] a 705(b) hearing17 with regard to any type of 

purported fingerprint evidence,” and during that hearing, he cross-examined

Investigator Berg on a variety of issues, including her qualifications, how long her 

analysis took, whether her analysis had been peer-reviewed, whether inherent bias 

could impact fingerprint analysis, whether fingerprint analysis was objective or 

subjective, where the ACE-V method of fingerprint analysis that she had used came 

from, and how many commonalities were required for two fingerprints to be 

considered a match. At the conclusion of the hearing, Pinkston argued that he 

“d[id]n’t think that we ever g[o]t anywhere by clear and convincing evidence passing 

over the Kelly factors and/or the Daubert factors based on the testimony of the 

witness.”

18

 He did not identify what Kelly factors he thought were lacking, nor did he

specify the predicate deficiency that allegedly rendered Investigator Berg’s testimony

inadmissible. And given the scope of his questions on cross-examination, the specific 

grounds for his objection were not clear from the context. See Tex. R. App. P. 

33.1(a)(1)(A). Pinkston thus waived his appellate complaint that the alleged absence

17See Tex. R. Evid. 705(b) (“Before an expert states an opinion or discloses the 

underlying facts or data, an adverse party . . . in a criminal case must . . . be permitted 

to examine the expert about the underlying facts or data. This examination must take 

place outside the jury’s hearing.”).

18When the trial court ruled that it would allow Investigator Berg’s expert 

testimony, Pinkston obtained a running objection to the fingerprint testimony for 

“everything that’s been raised outside the jury’s presence.”
20

of “[Kelly] items 3, 4, 5, or 6” undermined the reliability of Investigator Berg’s 

testimony. 

Even if Pinkston had preserved his complaint, though, it would be off the 

mark. The seven Kelly factors are considerations “that could”—but might not—“affect 

a trial court’s determination of reliability.” Kelly, 824 S.W.2d at 573 (emphasis added). 

The Kelly factors do not serve as a mandatory checklist; evidence of every factor is not 

required in every case, nor does the absence of a single factor automatically render the 

expert’s testimony unreliable under Kelly. Cf. Vela v. State, 209 S.W.3d 128, 134 (Tex. 

Crim. App. 2006) (noting that “[t]he reliability inquiry is . . . a flexible one” that “even 

if the traditional Kelly reliability factors do not perfectly apply to particular testimony, 

the proponent is not excused from proving its reliability”); Wolfe v. State, 459 S.W.3d 

201, 205 (Tex. App.—Fort Worth 2015) (similar, citing Vela), aff’d, 509 S.W.3d 325 

(Tex. Crim. App. 2017).

Plus, Pinkston himself elicited testimony from Investigator Berg on several of 

the Kelly factors that he claims are missing. On cross-examination, he asked her about 

the rate of error (factor 4)—which, according to Investigator Berg, “[s]tudies have 

shown . . . can be as high as 7 percent [erroneous exclusions]”—and he had her 

identify the person who had verified her analysis of Pinkston’s prints (factor 5)—

“David Taylor, who is also a certified latent print examiner.” See Kelly, 824 S.W.2d at

573. As for factor 6, Investigator Berg’s detailed description of the ACE-V analysis
21

was itself a demonstration of the “clarity with which the underlying scientific theory 

and technique c[ould] be explained to the court.” Id.

Because Pinkston did not preserve this third issue, and because it would have 

been fruitless even if it had been preserved, we overrule it. 

4. Testimony regarding Pinkston’s gang affiliation

In his fourth and final issue, Pinkston challenges the admission of testimony 

from the State’s gang expert, who interpreted Pinkston’s photographed, gang-related 

tattoos as indicative of his gang affiliation. Pinkston claims that his alleged gang 

affiliation “was irrelevant,” that the gang expert was speculating about his gang 

affiliation based on “no evidence,” that the expert testimony linking him to a gang

was “more prejudicial than probative,” that such testimony was inadmissible under

Beasley v. State, 902 S.W.2d 452 (Tex. Crim. App. 1995) (plurality op.), superseded by 

statute as recognized in Beham v. State, 559 S.W.3d 474, 479 (Tex. Crim. App. 2018),

19 and 

that the expert’s use of his tattoos to link him to a gang violated his constitutional

right “to place any tattoo of any sort on his body and associate with anyone he 

chooses.”

20

19As the Court of Criminal Appeals has clarified, “Beasley is not binding 

authority.” Beham, 559 S.W.3d at 479 (noting that Beasley is “a plurality opinion 

construing an iteration of Article 37.07 that was more narrowly drafted than the 

present law”). 

20At trial, Pinkston objected to the admission of photos of his gang-related 

tattoos “under the 1st Amendment of breaching the freedom of speech, as well as the 

14th Amendment for due process, as well as Article 1, Section 8 of the Texas 
22

But the gang expert was not the only person to testify that Pinkston’s gangrelated tattoos evidenced his gang affiliation. After the gang expert took the stand, 

Stacey testified that she “kn[e]w [Pinkston] to be involved in a gang,” and when she 

was asked “[h]ow,” she responded that “[i]t’s tatted on his body.” Pinkston did not 

object to this duplicative testimony, nor does he challenge it on appeal.

21 Even if the 

trial court had erred by admitting the gang expert’s testimony, then, the error was

rendered harmless by Stacey’s unobjected-to testimony of the same fact. See Cook, 

2023 WL 152984, at *5; cf. Parks v. State, No. 02-22-00011-CR, 2023 WL 2325506, 

at *9 (Tex. App.—Fort Worth Mar. 2, 2023, no pet.) (mem. op., not designated for 

Constitution, the right to publish on any subject, and as well as objections under due 

course of law under Article 1, Section 19.” But he did not object to the exhibits as 

irrelevant or as more prejudicial than probative.

21Pinkston secured a running objection “throughout the entirety of [the gang 

detective’s] testimony,” but the running objection did not extend to Stacey’s 

testimony. See Blue v. State, No. 02-17-00265-CR, 2018 WL 6844134, at *7–8 (Tex. 

App.—Fort Worth Dec. 31, 2018, pet. ref’d) (mem. op., not designated for 

publication) (holding that running objection asserted on multiple grounds, some of 

which were specific to witness, did not extend to different witness’s testimony on 

same issue); Reid v. State, No. 10-14-00107-CR, 2015 WL 6584361, at *2–3 (Tex. 

App.—Waco Oct. 29, 2015, pet. ref’d) (mem. op., not designated for publication) 

(noting that running objection “on this issue” raised during one witness’s testimony 

did not extend to similar testimony from three other witnesses); Warner v. State, No. 2-

07-464-CR, 2009 WL 2356861, at *2–3 (Tex. App.—Fort Worth July 30, 2009, pet. 

ref’d) (mem. op., not designated for publication) (holding that running objections 

raised during one witness’s testimony did not extend to similar testimony from

another witness); cf. Sattiewhite v. State, 786 S.W.2d 271, 283 n.4 (Tex. Crim. App. 1989)

(cautioning that “an advocate who lodges a running objection should take pains to 

make sure it does not encompass too broad a reach of subject matter over too broad a 

time or over different witnesses”).
23

publication) (holding admission of challenged statement harmless because the same 

fact came in through unchallenged statement); Mayo, 2021 WL 2587065, at *3–4

(holding admission of challenged testimony harmless when video containing similar 

statements was not challenged on appeal); Redmond, 629 S.W.3d at 546 n.14 (holding

admission of testimony regarding unadjudicated robberies harmless when photo 

depicting robbery was not objected to). 

Moreover, a reasonable juror could infer that Pinkston had gang-related

“tatt[ooing] on his body” by examining the tattoo photos for themselves. Such 

photos depicted, for example, the word “HOOVA” in large block letters across 

Pinkston’s stomach and the phrase “Crippin” in large block letters across his back. 

Although Pinkston objected to testimony regarding these photos at trial, his appeal

does not challenge the photos’ admission into evidence. See Mayo, 2021 WL 2587065, 

at *4. 

Because the gang expert’s testimony was duplicative of other, unchallenged 

evidence, we overrule Pinkston’s final issue.
24

III. Conclusion

Having overruled all four of Pinkston’s issues, we affirm the trial court’s 

judgments of conviction. See Tex. R. App. P. 43.2(a). 

/s/ Bonnie Sudderth

Bonnie Sudderth

Chief Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: April 20, 2023