PD-___________

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

 MICHAEL ANDRADA,

PETITIONER 

v.

THE STATE OF TEXAS

* * * * * * * * * *

Petition in Cause No. 2012-436,468, from the

137th District Court of Lubbock County, Texas,

Hon. John J. McClendon III presiding

and Cause No. 07-13-00278-CR in the Court of Appeals

for the Seventh Supreme Judicial District of Texas

* * * * * * * * * *

 PETITION FOR DISCRETIONARY REVIEW

David Crook, Crook & Jordan

Attorneys-at-Law

PO Box 94590

(806) 744-2082

 (806) 744-2083 Fax

 dcrook@nts-online.net

Attorney for the Petitioner,

MICHAEL ANDRADA

PD-0414-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 4/14/2015 9:50:04 AM

Accepted 4/15/2015 5:21:08 PM

ABEL ACOSTA

CLERK
2

 IDENTITY OF JUDGE, PARTIES, AND COUNSEL

(RULE 68.4(a), TEX. R. APP. PROC.)

A complete list of all parties to the trial court’s judgment or order appealed from, and the names 

and addresses of all trial and appellate counsel includes:

 MICHAEL ANDRADA, Petitioner 

 TDCJ#1885819 

 Clements Unit 

 9601 Spur 591

 Amarillo, TX 79107 

 THE STATE OF TEXAS, Respondent

FOR THE PETITIONER: FOR THE STATE OF TEXAS:

DAVID CROOK, Crook & Jordan MR. JEFF FORD 

PO Box 94590 ATTORNEY FOR THE

Lubbock, Texas 79493 STATE OF TEXAS

(806)744-2082 Office of the District Attorney

(806) 744-2083 (fax) Lubbock County

State Bar No. 05109530 PO Box 10536

Attorney for the Petitioner Lubbock, TX 79408-3536

 (806) 775-1100

TRIAL COURT JUDGE: (806) 775-1154 (fax)

Hon. John J. McClendon, III Hon. LISA McMINN

Lubbock County Courthouse State Prosecuting Attorney

904 Broadway PO Box 12405

137th District Court, Lubbock County Austin, TX 78711

PO Box 10536 (512) 463-1660

Lubbock, TX 79408-3536 (512) 463-5724 (fax)

(806) 775-1022

(806) 767-9656 (fax)
3

TABLE OF CONTENTS

(RULE 68.4(a), TEX. R. APP. PROC.)

PAGE

PARTIES ......................................................................................................2

TABLE OF CONTENTS .....................................................................................3

INDEX OF AUTHORITIES ................................................................................4

STATEMENT REGARDING ORAL ARGUMENT ...................................................6

STATEMENT OF THE CASE .............................................................................6

STATEMENT OF PROCEDURAL HISTORY ............................................................7

PETITIONER’S GROUNDS FOR REVIEW ..............................................................8

THE APPELLATE COURT ERRED BY FINDING THAT THE TRIAL COURT DID 

NOT ABUSE ITS DISCRETION IN ALLOWING TESTIMONY OF PETITIONER’S 

PURPORTED GANG MEMBERSHIP INTO EVIDENCE IN SENTENCING PHASE, 

WHERE THE PROFFERED TESTIMONY WAS NOT SHOWN TO BE RELIABLE. 

REASONS FOR REVIEW ...................................................................................8

THE DECISION OF THE COURT OF APPEALS CONFLICTS WITH THE 

APPLICABLE DECISIONS OF THE COURT OF CRIMINAL APPEALS. 

ARGUMENT ...........................................................................................................9

CONCLUSION AND PRAYER ...........................................................................12

CERTIFICATE OF COMPLIANCE......................................................................12

CERTIFICATE OF SERVICE ............................................................................12

APPENDIX ...................................................................................................14
4

INDEX OF AUTHORITIES

 (RULE 68.4(b), TEX. R. APP. PROC.)

 PAGE

Case Law, Federal

United States v. Padilla, 387 F.3d 1087 (9th Cir. 2004)...........................................11

State Statutory Law

TEX R. EVID. 702.......................................................................................8

Case Law, State

Hartman v. State, 946 S.W.2d 60 (Tex. Crim. App. 1997).......................................11

Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992)..........................................11

Lasalle Pipeline, LP. V. Donnell Lands, L.P. (Tex. App.—San Antonio 2011, pet. den.)....9

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)............................9

Morris v. State, 361 S.W.3d 649, 656 (Tex. Crim. App. 2011)..................................11

Ortiz v. State, 93 S.W.3d 79, 86 (Tex. Crim. App. 2002).........................................11

Rayon v. State, 121 S.W.3d 7, 20 (Tex. App.—Fort Worth 2002)................................9

Sexton v. State, 93 S.W.3d 96, 101 (Tex. Crim. App. 2002)......................................11

Vela v. State, 209 S.W.3d 128, 130 (Tex. Crim. App. 2006).....................................11 

Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000)...............................9
5

 PD-_______

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

MICHAEL ANDRADA,

PETITIONER 

v.

THE STATE OF TEXAS

* * * * * * * * * *

Petition in Cause No. 2012-436,468, from the

137th District Court of Lubbock County, Texas,

Hon. John J. McClendon presiding

and Cause No. 07-13-00278-CR in the Court of Appeals

for the Seventh Supreme Judicial District of Texas

* * * * * * * * * *

 PETITION FOR DISCRETIONARY REVIEW

David Crook, Crook & Jordan

Attorneys-at-Law

PO Box 94590

(806) 744-2082

 (806) 744-2083 Fax

Attorney for the Petitioner,

MICHAEL ANDRADA

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

COMES NOW MICHAEL ANDRADA, Petitioner, by and through his attorney of 

record, DAVID CROOK, and petitions the Court of Criminal Appeals of Texas to exercise its 

discretionary jurisdiction to review the judgment of the Court of Appeals for the Seventh District 
6

of Texas, Amarillo, Texas. In support of this Petition, he would show this Honorable Court as 

follows.

STATEMENT REGARDING ORAL ARGUMENT

(RULE 68.4(c), TEX. R. APP. PROC.)

 The grounds for review set forth in this petition concern the failure of the court of appeals 

to follow binding precedent; oral argument would be helpful to the Court in distinguishing the 

factual background of the case as shown in the record inasmuch as the facts of the case play an

important role in defining the implications of Petitioner’s argument. 

STATEMENT OF THE CASE

(RULE 68.4(d), TEX. R. APP. PROC.)

 On October 30, 2012, Petitioner was charged in a two-count indictment. In Count 1 he 

was charged under Health & Safety Code § 481.112(d) with Possession with Intent to Deliver a 

Controlled Substance, Methamphetamine, in an amount between 4 and 200 grams (CR p. 7). 

The count contained a Drug Free Zone allegation under Health and Safety Code § 481.134, the 

premises alleged being a school, Cavazos Middle School. In Count 2 Petitioner was charged 

with Unlawful Possession of Firearm under Penal Code § 46.04(a)(1).

 A non-evidentiary pretrial hearing was held in the case on April 26, 2013 (Reporter’s 

Record [“RR”] v. 2). Petitioner’s jury trial on guilt-innocence commenced on July 29, 2013 in 

the 137th District Court, Hon. John J McClendon presiding. He was convicted on July 31, 2013 

(RR v. 6, p. 58). Sentencing proceedings took before the jury on the same day. The jury 

sentenced Petitioner to life imprisonment in the Texas Department of Criminal Justice, 

Institutional Division (RR v. 6, p. 151, CR pp. 62-65). The Court sentenced Appellant 

accordingly.

 Petitioner perfected appeal on August 1, 2013 (CR p. 80).
7

STATEMENT OF PROCEDURAL HISTORY

(RULE 68.4(e), TEX. R. APP. PROC.)

 The Seventh Court of Appeals rendered its decision affirming petitioner’s conviction on 

March 16, 2015. No motion for rehearing was filed by Petitioner. This petition was then timely 

filed.

GROUNDS FOR REVIEW: 

THE APPELLATE COURT ERRED BY FINDING THAT THE TRIAL COURT DID 

NOT ABUSE ITS DISCRETION IN ALLOWING TESTIMONY OF PETITIONER’S 

PURPORTED GANG MEMBERSHIP INTO EVIDENCE IN SENTENCING PHASE, 

WHERE THE PROFFERED TESTIMONY WAS NOT SHOWN TO BE RELIABLE. 

REASONS FOR REVIEW: 

THE DECISION OF THE COURT OF APPEALS CONFLICTS WITH THE 

APPLICABLE DECISIONS OF THE COURT OF CRIMINAL APPEALS. 
8

 ARGUMENT 

GROUNDS FOR REVIEW: THE APPELLATE COURT ERRED BY FINDING THAT THE 

TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ALLOWING TESTIMONY OF 

PETITIONER’S PURPORTED GANG MEMBERSHIP INTO EVIDENCE IN SENTENCING 

PHASE, WHERE THE PROFFERED TESTIMONY WAS NOT SHOWN TO BE RELIABLE. 

 The Record

 Petitioner’s grounds herein are based on a claim that the evidence the State proffered at 

trial of his gang membership was not sufficiently reliable under the requirements of T.R.E. 702 

to pass evidentiary muster.

 Before trial, Petitioner filed his Motion for Rule 702 Hearing Re State’s Gang Testimony. 

The Court held a relatively long 702 hearing out of the presence of the jury during trial with 

testimony from its proffered expert, Billy Koontz of LSO (RR v. 6, pp. 66-94). After hearing the 

testimony, the Court overruled Petitioner’s 702 objection to Koontz’s testimony as an expert to 

the effect that Appellant was a gang member. Petitioner objected, inter alia, on 702 reliability 

grounds. The Court overruled all objections (RR v. 6, pp. 97-99). Petitioner got a running 

objection to all gang testimony, Q&A, etc., out of the presence of the jury. 

 Before the jury, Koontz testified that in his opinion Petitioner was a member of the North 

Side Locos and the West Texas Tango gangs.

 T.R.E. 702 and the Requirement of Reliability; Standard of Review

 T.R.E. 702 governs the admission of expert testimony. TEX. R. EVID. 702. The 

proponent of scientific or technical evidence must show by clear and convincing proof that the 

proffered evidence is sufficiently relevant and reliable to assist a fact-finder in understanding the 

evidence. 

 Expert testimony must be based on a reliable foundation to be admissible. The evidence 

must have a reliable basis in the knowledge and experience of the discipline. Expert testimony is 
9

unreliable and thus inadmissible if it is no more than subjective belief or unsupported 

speculation. “Expert” testimony that is conclusory or speculative is not admissible. Lasalle 

Pipeline, LP. V. Donnell Lands, L.P. (Tex. App.—San Antonio 2011, pet. den.). A trial court 

should not consider “expert” opinion based on the assumption of unproven facts. Rayon v. State, 

121 S.W.3d 7, 20 (Tex. App.—Fort Worth 2002).

 At a 702 hearing, the trial court is the sole judge of the weight and credibility of the 

evidence present, and the court’s ruling on admissibility is reviewed for abuse of discretion. 

Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). The reviewing court 

considers the trial court’s ruling on the admissibility of scientific evidence in the light of the 

evidence presented at the time of the trial court’s ruling. Id. at 542. The reviewing court must

uphold the trial court’s ruling on the admissibility of scientific evidence if it was within the zone 

of reasonable disagreement and considers whether the trial court acted without reference to 

guiding rules or principles or whether the trial court acted arbitrarily or unreasonably in so 

acting. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).

Basis of Testimony for the Expert’s Opinion at Trial

 Billy Koontz, the State’s purported gang expert at trial, had from his own testimony never 

worked as a gang coordinator, and did not know which numbered region Lubbock pertained to 

with regard to gangs. The only document that Koontz had purporting to show Petitioner’s gang 

membership was one he had prepared for the instant case (RR v. 6, p. 72). Koontz did not have 

anything coming from the Texas Violent Gang Task Force showing Petitioner to be a gang 

member (RR v. 6, p. 73). Koontz knew nothing of the availability of a judicial proceeding for 

the purpose of contesting being identified as a gang member (RR v. 6, p. 75). Koontz was 

unaware of and did not possess any judgment showing that Petitioner had ever been judicially 
10

adjudicated to be a member of a gang (RR v. 6, pp. 76-77). Koontz was unaware of any selfadmission of gang membership on Petitioner’s part (RR v. 6, p. 77). Koontz had no documents 

claiming to identify Petitioner as a gang member on the basis of information from a “reliable 

informant,” (RR v. 6, p. 77). Koontz had no corroborated identification of Petitioner as a gang 

member by an individual of unknown reliability (RR v. 6, p. 77). 

 Koontz admitted that he had no photographs (?) of tattoos of known West Texas Gang 

members “in the file” (RR v. 6, p. 74). Therefore, he had immediate or direct basis of 

comparison in terms of photos of known West Texas gang members to compare with any of 

Petitioner’s tattoos (RR v. 6, pp. 74-75). Koontz also claimed that Petitioner associated with 

known criminal gang members due to some inconclusive Facebook photos that also showed 

many other individuals Koontz never claimed gang membership for (RR v. 6, pp. 77-78). 

 Koontz claimed that Petitioner sported “gang colors,” but this was based on one photo of 

him wearing an unmarked red T-shirt (RR v. 6, p. 82). Koontz said that Petitioner had “2320” 

tattooed on his arm, supposedly referring to the 23rd and 20th letters of the alphabet, those being 

“W” and “T,” and referring to the West Texas gang (RR v. 6, p. 89). Koontz said again that he 

did not have any photos in his immediate possession to prove his point about any gang tattoos or 

symbols (RR v. 6, pp. 85-86). When asked which if any tattoos referred to the North Side Locos 

gang, Koontz gave an answer with little semantic content (RR v. 6, p. 89). When crossexamined about North Side Locos tattoos, Koontz said he “believed” that Petitioner had a tattoo 

that said “North, or something” (RR v. 6, p. 91).

 On redirect, the State made it clear that Petitioner, despite a previous prison stint, was not 

confirmed in TDCJ as a gang member (RR v. 6, p. 94). Koontz nevertheless opined that 

Petitioner was both a North Side Loco and a West Texas Tango member (RR v. 6, p. 96). 
11

Did the Court of Appeals Err in Holding that the Trial Court Properly Allowed the Gang 

Testimony Into Evidence?

 Reliability is one of at least three basic required attributes of scientific or technical 

evidence, along with the qualifications of the expert and the proffered testimony’s relevance. 

Reliability depends on whether the evidence has its basis in a sound methodology. This requires 

a “certain technical showing.” Vela v. State, 209 S.W.3d 128, 130 (Tex. Crim. App. 2006). 

In a given instance, the “underlying theory” of an area of inquiry may be reliable, but the State 

may fail at trial to produce evidence of the reliability of the technique used. Sexton v. State, 93 

S.W.3d 96, 101 (Tex. Crim. App. 2002). 

 The Court of Appeals, in affirming the conviction and sentence, cited several cases holding 

that the issue of “gang behavior” is a proper subject of expert testimony. See Morris v. State, 

361 S.W.3d 649, 656 (Tex. Crim. App. 2011), Ortiz v. State, 93 S.W.3d 79, 86 (Tex. Crim. App. 

2002), and United States v. Padilla, 387 F.3d 1087 (9th Cir. 2004) [Opinion of the Court of 

Appeals, p. 11]. None of the foregoing cases permitted testimony of gang membership on 

anything like the sketchy basis shown here. 

 Petitioner avers that the State was allowed to present purported expert testimony of 

Petitioner’s supposed gang affiliations without a proper showing of reliability as to that 

testimony. The Texas Court of Criminal Appeals has interpreted Rule 702 of the Texas Rules of 

Evidence to require a showing that any scientific or technical evidence is both relevant and 

reliable. See Hartman v. State, 946 S.W.2d 60 (Tex. Crim. App. 1997), Kelly v. State, 824 

S.W.2d 568 (Tex. Crim. App. 1992), along with Vela, supra. In upholding the Trial Court’s 

actions by affirming the case, Petitioner respectfully submits that the Court of Appeals failed to 

follow binding precedent. 
12

CONCLUSION AND PRAYER FOR RELIEF

 WHEREFORE, PREMISES CONSIDERED, Petitioner MICHAEL ANDRADA, prays 

that the Court of Criminal Appeals grant his Petition for Discretionary Review, and that after 

submission, this Court reverse the decision of the Court of Appeals and remand the Cause for 

new sentencing proceedings. 

Respectfully submitted,

David Crook

Crook & Jordan

Attorney-at-law

PO Box 94590

Lubbock, Texas 79493

(806) 744-2082

(806) 744-2083 Fax

dcrook@nts-online.net

Attorney for the Petitioner,

MICHAEL ANDRADA

_/S/ David Crook

DAVID CROOK

Texas State Bar No. 05109530

 CERTIFICATE OF COMPLIANCE WITH T.R.A.P. 9.4(i)(2)(D)

 This is to certify that the length of the foregoing Petition for Discretionary Review

conforms with the Texas Rule of Appellate Procedure 9.4, in that the brief, computer-generated, 

is 1,406 words, which is no longer than 4,500 words, exclusive of the pages containing the 

identity of the parties and counsel, any statement regarding oral argument, the table of contents, 

the index of authorities, the statement of the case, the issues presented, the signature, and the 

proof of service.

 /s/ David Crook _________________

 David Crook

CERTIFICATE OF SERVICE

This is to certify that a true and accurate copy of the above and foregoing PETITION 
13

FOR DISCRETIONARY REVIEW was mailed on this day to the Hon. Jeff Ford, attorney for 

the State of Texas, at his office address of Office of the District Attorney, PO Box 10536, 

Lubbock, TX 79408-3536. It was also mailed to Hon. Lisa McMinn, State Prosecuting Attorney, 

P.O. Box 12405, Austin TX 78711, on April 14, 2015.

/s/David Crook

 David Crook
14

 APPENDIX
In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-13-00278-CR 

MICHAEL ANDRADA, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

On Appeal from the 137th District Court 

Lubbock County, Texas 

Trial Court No. 2012-436,468, Honorable John J. "Trey" McClendon, Presiding 

 

March 16, 2015 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. 

Through four issues, appellant Michael Andrada appeals his conviction and life 

sentence in prison for possession of four grams or more but less than 200 grams of 

methamphetamine with intent to deliver, enhanced by a prior felony conviction and a 

drug-free zone finding.1 The judgment also contains a deadly weapon finding. We will 

affirm. 

 1 TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6), 481.112(d) (West 2010). An 

offense under section 481.112(d) is punishable by imprisonment for life or for a term of 
2

Background

As part of a narcotics investigation, Lubbock police officers assisted by a 

S.W.A.T. team executed a no-knock search warrant at a two-bedroom residence 

occupied by appellant. As officers entered appellant attempted to flee but was 

apprehended. 

A pat-down search yielded a package containing 4.66 grams of a substance that 

proved to be methamphetamine. Also located on appellant’s person was currency 

amounting to $315 in various denominations. Elsewhere in the residence, officers 

found a firearm and body armor. They also located scales, plastic bags, a surveillance 

camera, marijuana, spiral notebooks which, according to trial testimony, contained a 

record of narcotics transactions, and a substance later identified as a cutting agent for 

methamphetamine. 

Officers associated one bedroom with appellant. It contained a bed. A recently 

issued traffic ticket found in the room bore appellant’s name. A loaded nine-millimeter 

handgun was on the bed.

___________________________

not more than 99 years or less than 10 years, and a fine not to exceed $100,000. TEX.

HEALTH & SAFETY CODE ANN. § 481.112(e) (West 2010). On a showing of a prior felony 

conviction, the minimum term of confinement is increased to fifteen years. TEX. PENAL 

CODE ANN. § 12.42(c)(1) (West Supp. 2014). If it is shown that an offense under section 

481.112(e) was committed in a drug-free zone, the minimum term of confinement is 

increased by five years. TEX. HEALTH & SAFETY CODE ANN. § 481.134(c) (West Supp. 

2014). Appellant plead true to the prior felony conviction enhancement allegation and 

not true to the drug-free zone allegation. 
3

According to an investigating officer, the other bedroom appeared to be used for 

storage. It contained tires and bags. In this bedroom, officers found body armor. 2 

Appellant was charged, convicted, and sentenced as noted.

Analysis

Admissibility of Body Armor

Through his first issue, appellant argues the trial court abused its discretion by 

admitting evidence of the presence of the body armor discovered in the residence. He 

characterizes the error as one involving the admission of evidence of other crimes or 

wrongs in violation of rule of evidence 404(b). 

During testimony an officer explained body armor contains a “ballistic material” 

intended to stop or slow the impact of a bullet. Another officer testified in his opinion a 

person dealing narcotics might have “digital scales, baggies, and a lot of times, they’ll 

have firearms, body armor, to protect the narcotics.” Another officer testified similarly. 

The officer agreed that in the residence police located narcotics, money, body armor 

and a firearm. Over objection, the court admitted the body armor into evidence. 

The admissibility of evidence is within the discretion of a trial court and will not be 

overturned absent an abuse of discretion. Moses v. State, 105 S.W.3d 622, 627 (Tex. 

Crim. App. 2003). If the ruling comes within the zone of reasonable disagreement, an 

appellate court should affirm. Id.

 2

 “[B]ody armor’ means any body covering manifestly designed, made, or 

adapted for the purpose of protecting a person against gunfire.” TEX. PENAL CODE ANN.

§ 46.041(a) (West 2011). It is a third-degree felony offense for a previously convicted 

felon to possess body armor. Id. at 46.041(b),(c). 
4

Under rule of evidence 401, evidence is relevant if it makes the existence of a 

fact that is of consequence to the determination of the action more probable than it 

would be without the evidence. TEX. R. EVID. 401; Moses, 105 S.W.3d at 625. Relevant 

evidence is presumed admissible. TEX. R. EVID. 402; Moses, 105 S.W.3d at 625. 

Under rule 404(b), evidence of other crimes, wrongs, or acts is inadmissible to prove a 

person’s character for the purpose of showing action in conformity therewith, but is 

admissible for other purposes such as showing motive, opportunity, intent, preparation, 

plan, knowledge, identity, or absence of mistake or accident. TEX. R. EVID. 404(b); 

Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex. Crim. App. 1991) (op. on reh’g); 

Hollis v. State, 219 S.W.3d 446, 456 (Tex. App.—Austin 2007, no pet.). 

Although as noted possession of body armor by a convicted felon is itself an 

offense, the court did not instruct the jury of that fact, nor do we find an indication in the 

record the jury otherwise was made aware of it during the guilt-innocence phase of 

trial.3 It is our assessment that the body armor was not presented as evidence of a 

separate wrongful act under rule 404(b). To assess appellant’s challenge to admission 

of this evidence we will, however, consider it as addressing the body armor’s relevance. 

See TEX. R. APP. P. 38.1(f) (issue in appellant’s brief treated as covering every 

subsidiary question fairly included); 38.9 (briefing rules construed liberally). 

 3 A limiting instruction in the charge pertained to evidence “tending to show that 

the Defendant herein committed offenses other than the offenses alleged against him in 

the indictment.” The jury could consider such evidence only for “determining the motive, 

intent, preparation, plan, knowledge.” Had the jury also been told appellant was a 

convicted felon and possession of body armor by a felon is unlawful, the instruction 

would guide their consideration of the body armor. 
5

In its context with the other evidence of narcotics dealings presented, we believe 

the body armor was probative of appellant’s intent to deliver narcotics. See United 

States v. Mays, 466 F.3d 335, 341 (5th Cir. 2006) (“The firearms, body armor, scales, 

measuring cup, and baggies all qualify as ‘tools of the trade’ that indicate that [the 

defendant] did not intend to keep the cocaine base for personal use”); United States v. 

McDowell, 762 F.2d 1072, 1075-76 (D.C. Cir. 1985) (per curiam) (explaining “someone 

who intends to sell a substantial amount of [a controlled substance] is more likely than 

an ordinary drug abuser to fear that others might try to shoot him, and to acquire a 

bulletproof vest in order to guard against that danger . . . . The vest was logically part of 

the specific equipment [the defendant] might use in selling the drug, and thus tended to 

show that [the defendant] actually intended to make such sales”). 

Further, the body armor was relevant to the deadly-weapon inquiry. See United 

States v. Young, 68 Fed. Appx. 744, 2003 U.S. App. LEXIS 7432, at *3-4 (8th Cir. 2003, 

Apr. 21, 2003) (per curiam) (bullet proof vest and ammunition were probative of felon’s 

possession of firearms and the probative value of evidence was not outweighed by the 

danger of unfair prejudice). “In both the case of drug paraphernalia and drugs and the 

case of a bullet-proof vest and a firearm, the relationship between the contraband and 

the tools sometimes used with contraband allows a logical inference to be drawn.” 

United States v. Lee, 612 F.3d 170, 184 (3d Cir. 2010). 

Finally, even if considered under rule 404(b), the vest was not offered to prove 

appellant’s character but was “squarely relevant on the issue of intent.” McDowell, 762 

F.2d at 1075. 
6

Appellant’s first issue is overruled. 

Improper Jury Argument

Through his second issue, appellant asserts the prosecutor, during jury argument 

in the guilt-innocence phase of trial, misinformed the jury of the law on a deadly weapon 

finding by stating, “Now, Ladies and Gentlemen, you don’t have to go back there and 

say he actually had [the firearm] in his hand. The State does not have to prove that he 

actually was putting it in his hand.” 

Counsel for appellant objected, saying the prosecutor’s argument was a 

misstatement of the law. The trial court overruled the objection but immediately 

instructed the jury, “The Jury is—is directed, however, to refer to the Court’s Charge in 

regards to what the law is.” Earlier in his argument the prosecutor told the jury, “[The 

charge] gives you all the answers you need. If you have a question about the law, and 

you refer back to this.”

The charge included the following deadly-weapon special issue to be answered 

only if the jury first found appellant guilty of he charged offense: “Do you, the Jury, find 

beyond a reasonable doubt that the Defendant used or exhibited a deadly weapon, 

namely a firearm, during the commission of the offense for which he has been 

convicted?” The question required the jury to respond either “we do” or “we do not.” 

The charge did not define the terms “use” or “exhibit” or give the jury further instruction 

regarding the application of those terms to this case. The charge contained a general 

instruction that undefined terms should be given their common meanings.
7

During its deliberation the jury sent out two notes relating to the deadly-weapon 

special issue. It first asked “what happens” if, having agreed to appellant’s guilt, the jury 

could not agree on the deadly-weapon question. Next, it inquired “is testimony available 

for us to review stating where and how the gun was discovered?” 

On appeal, appellant does not explain in what sense the prosecutor’s statement 

was a misstatement of the law. “The purpose of closing argument is to facilitate the 

jury’s proper analysis of the evidence presented at trial in order to arrive at a just and 

reasonable conclusion based solely on the evidence.” Harris v. State, 122 S.W.3d 871, 

883 (Tex. App.—Fort Worth 2003, pet. refused). In so doing, counsel may correctly 

quote or paraphrase the law found in the jury charge. Whiting v. State, 797 S.W.2d 45, 

48 (Tex. Crim. App. 1990); see Bess v. State, No. AP-76,377, 2013 Tex. Crim. App. 

Unpub. LEXIS 334, at *94 (Tex. Crim. App. Mar. 6, 2013) (not designated for 

publication) (explaining during closing argument parties may correctly explain the law 

contained in the jury charge and its application). “Each side is entitled to explain a legal 

concept as long as the example given by counsel does not constitute a statement of the 

law contrary to that in the charge.” Eckert v. State, 672 S.W.2d 600, 603 (Tex. App.—

Austin 1984, pet. refused). 

The Court of Criminal Appeals in Patterson v. State, 769 S.W.2d 938, 941 (Tex. 

Crim. App. 1989), stated that “used . . . a deadly weapon” during the commission of the 

offense means that the deadly weapon was employed or utilized in order to achieve its 

purpose, while “exhibited a deadly weapon” means that the weapon was consciously 

shown or displayed during the commission of the offense. Id. “Used. . . during the

commission of a felony offense” refers to the wielding of a firearm with effect, but also 
8

extends to any employment of a deadly weapon, even its simple possession, if such 

possession facilitates the associated felony. Id. One can “use” a deadly weapon 

without exhibiting it. Id. See Plummer v. State, 410 S.W.3d 855 (Tex. Crim. App. 2013) 

(discussing Patterson); Coleman v. State, 145 S.W.3d 649, 655 (Tex. Crim. App. 2004) 

(stating, in possession with intent to deliver case, defendant’s physical proximity to 

deadly weapon is not determinative for deadly weapon finding; rather, the “[t]he real 

question is whether the weapons are found to have facilitated [the defendant’s]

possession and intended distribution of the drugs”); cf. Gale v. State, 998 S.W.2d 221, 

225-26 (Tex. Crim. App. 1999) (concluding that the evidence was legally sufficient to 

find defendant “used” firearms found by police in a closet with marijuana for purposes of 

the deadly weapon special issue). In the present case, an officer gave opinion 

testimony that a person dealing narcotics might possess a firearm “to protect the 

narcotics.” Thus the jury could have believed appellant used a firearm to facilitate the 

charged offense. The prosecutor’s statement was not contrary to the law and charge. 

Appellant’s second issue is overruled. 

Expert Testimony on Gang Affiliation

At the punishment phase of trial, an officer rendered opinion testimony 

concerning appellant’s gang affiliation. By his third issue, appellant argues the

testimony should have been excluded because it was not reliable. Following a hearing 

outside the presence of the jury the trial court overruled appellant’s objections to the 

officer’s testimony, including one raising reliability.
9

The officer testified he has been a licensed peace officer since 1989. In that 

capacity, he has worked in narcotics units, a police “gang unit,” as a robbery homicide 

detective, and with a DEA task force. Currently he investigates offenses including 

gang-and narcotics-related offenses. He is trained in gang-related matters, has dealt 

with street and prison gangs in Lubbock since 1991, and has taught officers and others 

involved in the criminal justice system about gang affiliation and identification. He has 

testified in state and federal courts on gang affiliation. 

During testimony the officer identified the Lubbock street gangs, including one 

known as the North Side Locos. He also discussed the West Texas prison gang. The 

officer explained that certain local street gangs such as North Side Locos do not 

operate separately within prisons so their members are inclined to join West Texas for 

protection. 

In the officer’s opinion, those involved in street gangs tend to obtain tattoos 

containing symbols and numerals designating affiliation with a particular gang. The 

officer discussed a series of admitted photographs depicting appellant’s tattoos. 

In the photographs, the officer noted a tattoo containing a red bandanna which 

he believed was indicative of the North Side Locos, whose color is red. Another tattoo 

containing the words “north side” identified with the North Side Locos. The officer 

attributed another tattoo to the North Side Locos gang and West Texas gang based on 

red strains in the attire of its characters and the words “West Texas,” inscribed on a 

character’s cap. The officer agreed that the North Side Locos traffic in narcotics for 

financial gain. This he found represented by tattoo characters with money. The officer 
10

rendered the opinion that appellant is a member of the North Side Locos and the West 

Texas Tango.

4

 

We review a trial court's ruling on the admissibility of expert testimony for an 

abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); 

Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010). Generally, testimony 

concerning the gang affiliation of a defendant may be relevant and admissible at the 

punishment phase of trial to show the defendant’s character. Garcia v. State, 239

S.W.3d 862, 866-867 (Tex. App.—Houston [1st Dist.] 2007, pet. refused); see TEX.

CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1) (West Supp. 2014).

In performing its gatekeeper function as to the admissibility of expert testimony, a 

trial court must determine that (1) the witness qualifies as an expert by reason of 

knowledge, skill, experience, training, or education; (2) the subject matter of the 

testimony is appropriate for expert testimony; and (3) admitting the expert testimony will 

assist the fact-finder in deciding the case. See TEX. R. EVID. 702; Vela v. State, 209 

S.W.3d 128, 131 (Tex. Crim. App. 2006); Rodgers v. State, 205 S.W.3d 525, 527 (Tex. 

Crim. App. 2006). These conditions are usually known as qualification, reliability, and 

relevance. Vela, 209 S.W.3d at 131. 

Here, the opinion testimony of the officer concerned “soft” science. See 

Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000) (distinguishing “hard”

from “soft” sciences). The reliability of soft science evidence may be established by 

showing that the field of expertise involved is legitimate, the subject matter of the 

 4 Earlier in his testimony the officer stated his opinion the West Texas gang and 

the West Texas Tango gang are the same gang.
11

expert’s testimony is within the scope of that field, and the expert’s testimony properly 

relies on or utilizes the principles involved in that field. See id. 

The study of gang behavior is a generally accepted field of expertise. Hernandez 

v. State, No. 01-06-00779-CR, 2013 Tex. App. LEXIS 5228, at *52 (Tex. App.—Houston 

[1st Dist.] Apr. 30, 2013, no pet.) (mem. op., not designated for publication); see Morris 

v. State, 361 S.W.3d 649, 656 (Tex. Crim. App. 2011) (“Other generally accepted areas 

of expert testimony may involve the gaining of specialized knowledge through 

experience or personal research: the behavior of gangs . . .”); id. at 656 n.31 (citing 

Ortiz v. State, 93 S.W.3d 79, 86 (Tex. Crim. App. 2002) (noting officer in sheriff’s 

department rendered expert testimony on prison gangs) and United States v. Padilla,

387 F.3d 1087, 1094 (9th Cir. 2004) (finding expert testimony of a detective based on

his “extensive experience with Los Angeles street gangs, and the Cuatro Flats gang in 

particular” was reliable)). 

The officer’s testimony concerning street and prison gangs, and particularly the 

North Side Locos and the West Texas prison gang, included matters such as gangspecific words, numbers, and colors, as well as gang purposes like narcotics trafficking 

and protection in prison. Such testimony is within the scope of gang identification 

expertise. 

Finally, the officer’s opinion testimony was supported by law enforcement 

experience including dealing with street and prison gangs in Lubbock since 1991, 

training which included instructing other criminal justice professionals in gang affiliation 

and identification, and prior expert testimony in state and federal courts. We find the 
12

trial court did not abuse its discretion by implicitly finding the evidence of gang 

identification and affiliation presented through the officer was sufficiently reliable to 

permit its admission. See United States v. Thomas, No. 10-4725 and No. 10-4729, 490 

Fed. Appx. 514, 2012 U.S. App. LEXIS 15001, at *14-15 (4th Cir. July 20, 2012) (noting 

reliability of the testimony of a gang expert depends heavily on the expert’s knowledge 

and experience rather than the methodology or theory behind it). 

Appellant’s third issue is overruled.

Omission from the Record of the Charge and Verdict Forms

In his fourth issue appellant argues the trial court denied him due process by 

failing to resolve a matter regarding an omission from the clerk’s record on appeal 

pursuant to the procedure of appellate rule 34.5(e).5

In his initial appellate brief, appellant made us aware that the court’s charge on 

guilt-innocence and the verdict forms were not contained in the clerk’s record. In a 

letter to the parties we pointed out appellate rule 34.5(e) and granted appellant time to 

pursue relief under the rule and supplement his brief if necessary. The parties did not 

reach a stipulation under rule 34.5(e). We are not told the reason. But appellant filed in 

 5 Appellate rule 34.5(e), entitled Clerk’s Record Lost or Destroyed, provides: 

If a filing designated for inclusion in the clerk’s record has been lost or 

destroyed, the parties may, by written stipulation, deliver a copy of that 

item to the trial court clerk for inclusion in the clerk’s record or a 

supplement. If the parties cannot agree, the trial court must—on any 

party’s motion or at the appellate court’s request—determine what 

constitutes an accurate copy of the missing item and order it to be 

included in the clerk’s record or a supplement.

TEX. R. APP. P. 34.5(e). 
13

the trial court a “motion to supplement clerk[‘s] record on appeal,” to which he attached 

unsigned copies of a charge and verdict forms, bearing the style of appellant’s case in 

the trial court. His motion stated that he believed his attachments were “correct copies.” 

Nonetheless, his motion asked the court to determine “what constitutes an accurate 

copy” of the missing jury charge and verdict forms, and order that they be included in 

the clerk’s record. The trial court signed an order granting appellant’s motion.6 Shortly 

thereafter, a supplemental clerk’s record containing appellant’s motion and the court’s 

order was filed in this court. Within the time allowed, appellant filed a supplemental 

brief raising his due process issue. As we understand it, appellant’s complaint is that 

the trial court did not render “a full judicial determination of the issue . . . .”

The State’s brief responds both to appellant’s initial and supplemental briefs. 

With regard to this fourth issue, the State points out it had arranged for the court 

reporter to submit a transcription of the trial court’s reading of the guilt-innocence 

charge and the deadly-weapon special issue to the jury. A supplemental reporter’s 

record was filed containing such a transcription.

Appellant’s fourth issue lacks merit. We have no record that appellant notified 

the trial court of his complaint that the rule 34.5(e) order the court signed, or the court’s 

action pursuant to the order, denied him due process. Thus, no complaint about the 

trial court’s action is preserved for our review. TEX. R. APP P. 33.1(a). Appellant made 

one objection to the charge at trial but does not complain of charge error on appeal. 

Although the appellate record still does not contain a verdict form signed by the jury 

 6 From our examination of the supplemental clerk’s record containing the court’s 

order, it appears the order the court signed was provided by appellant.
14

foreperson, the reporter’s record reflects the trial court asked, and was told, the verdict 

was unanimous, and read the verdict. The court then read the special issue and the 

affirmative answer, and remarked, “It is signed by the foreperson of the Jury.” Appellant 

did not poll the jury, and raised no objection to the announcement of the verdict. Even 

now appellant does not tell us what he thinks may be wrong with the charge or verdict 

forms. We further note the charge at punishment, contained in the appellate record, 

begins with the recitation that the jury found appellant guilty of the charged offense. 

Appellant made no objection to this statement in the trial court and does not complain 

about it here.7 

For all these reasons, we overrule appellant’s fourth issue. 

Conclusion

The judgment of the trial court is affirmed.

James T. Campbell

 Justice

Do not publish. 

 

 7 Appellant was represented at trial by the same attorney who represents him in 

this court.