### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00455- CR

Dustin Anth ony Si m m ang, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 207 TH JUDICI AL DISTRICT NO. CR2009 -20 9, TH E H ONO RAB LE JACK H . RO B ISO N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A ju r y f o u n d a ppellant Dustin Anthony Simm ang g uilty of ag g r a v a te d k id n a p p in g a n d
ag g rava ted assault. See Tex. Penal Code §§ 20.04, 22.02. The trial court assessed ap p el l ant’s punishment, enhanc ed by a prior felony conviction, at confine ment for 40 y ear s in the I nstitut ional Division of the Texas Depa rtment of Criminal J ustice for eac h offe nse, order ing the sentenc es to run

concur rently

. See id. §§ 12.32, .33, .42(b), (d). On appea l, appellant complains about the admission of g ang -member ship evidence during the g uilt-innocence phase of trial and the imposit ion of multipl e punishments in violation of the prohibition on double jeopar dy

. We aff irm the trial court’s judgme nts of conviction.

BACK GR OUND

Appellant and Christine L undg ren had been dating for three to four months when, on April 17, 2009, they left L undg ren’ s children with her mother so they could g o out for the evening

.The couple visited sever al place s, including the apar tment of appellant’ s sister, consuming alcohol and Xana x throug hout the evening , and ultimately ended up at a local bar. At that point L undg ren
was, as she descr ibed, “complete ly inebriate d.” She told appellant that she neede d to g o home, and they left the bar. L

undg ren next reme m b er ed waking up in the back seat of her For d Ex plorer

co n fu s ed as to why they wer e not home. Eventually , they arr ived back at her apar tment. S h e

reme mbere d g etting out of her SUV, walking up the stairs to her apar tment, g o i n g inside her
apar tment, removing her c lothes, and g oing to he r bed, w here she “pa ssed out.”

Her next memory is being awa kened abruptly when appellant y anked her out of bed by her a nkles, demanding that she drive him to San Antonio. L undg ren refuse d and they arg ued. 1
As his ang er esca lated, appellant pinned her to the wall of her bedroom, choking her by pressing his fore arm a g ainst her ne ck. As he did so he threa tened L undg ren’ s life and the lives of her c hildren if he went to jail. L undg ren had difficulty brea th i ng and could not speak, but foug ht back and
manag ed to bre ak aw ay . She tried to esca pe ac ross the bed, but appellant pursued he r. He caug ht her and pinned her down on the bed, straddling her as he choked her ag ain with his fore arm ag ainst her neck. L undg ren foug ht back once more and aga in g ot awa y from appellant. At that point she
g rabbe d her r obe off

of the closet door and pulled it on as she ra n out of the apa

rtment. Appellant followed, chase d her down the stairs, and tackled her in an are a betwee n her apar tment building and

Appar ently the key s to appellant’ s truck, parke d at L undg ren’ s apar t ment, wer e locked 1 inside the truck. Appellant wanted L undg ren to drive him to his ap ar t m en t i n S an Antonio to retrie ve a spare set. L undg ren testified, howeve r, that she only discovere d this afte r returning from the hospital later that morning when she saw the key s in the truck. At the time he made his demand, she did not know why appellant wanted her to dr ive him to San Antonio. She ref used beca use she had an important meeting at work later that morning and was still intox icated. I nstead, she offe red her ke y s to appellant so he c ould drive himself. 2the office for the apar tment complex. L undg ren briefly esca ped his hold by slipping out of her robe when he g rabbe d it, but appellant ag ain tackled her and pinned her ag ainst the g round. Once ag ain he choke d her w ith his forear m ag ainst her ne ck. L

undg ren w as unable to brea k fre e this time. Ap p el lant then g rabbe d L undg ren by her hair and drag g ed her, clad only in h er underw ear , to her Ex plorer, hitting her along the way as she strug g led to esca pe. Appellant was able to ope n the driver’ s door of her SUV, forc e L undg ren inside, and follow her in. When she tried to exit , appell ant “bashe d” the left side of her head into the cente r console, causing her to lose consciousness. Appellant backed the SUV up, hitting a neig hbor’s car parked in the l ot, and then drove out of the parking lot.

When L undg ren reg ained consciousness in the Ex plorer, she continued to attempt to

esca pe from appellant. As appellant drove, she g rabbe d the bottom of the steering whee l and pulled it. When he attempted to corr ect, she strug g led with him over the steering whee l, pulling it the other
way . The Ex plorer cra shed into a g uardr ail and came to a stop. L undg ren jumped out and ran to the first set of headlig hts she could see, still clad only in he r underw ear . Police arr ived at the acc ident

scene and ar

rested a ppellant. Appellant was subsequently char g ed by indictm ent with ag g rava ted kidnapping , reta liation, and ag g rava ted assault. At trial, L undg ren testified to the above- descr ibed events. She said that she never consente d to g oing with appellant. She testified about the injuries she sustained during the alterc ation, stating that the injuries she rec eived that night wer e infl i cted by appellant,
not self-inflicte d injuries s u s t ai n ed by bumping into things in her intox icated state as appellant’ s counsel sug g ested. Photogra phs depicting the injuries she de scribed wer e admitted into e vidence

.

3She expressed that she felt terror ized by appellant’ s conduct and fea red for her life. L undg ren also testified about the thre at appe llant made during the alter cation in her apar tment, indicating tha t he told her that if he w ent to jail he or “ the brother hood” would kill her a

nd her c hildren. 2
A Sex ual Assault Nurse Ex am i n er , De b ra S t er l i n g , testified that she examined
L undg ren at th e h o s p i t al on April 20, 2009, and observe d bruising and broken capillar ies acr oss L undg ren’ s neck. Ste rl i n g o p i n ed that these injuries wer e consistent with the choking events L undg ren descr ibed—being “strang led with [appellant’s] fore arm” sever al t i mes which cause d
repe ated loss of awa

rene ss o r l oss of consciousness. The nurse char acte rized the injuries on L undg ren’ s body as “extensive” and testified that they wer e consistent wi th repe ated blunt forc e
trauma. Two body diag rams documenting the injuries wer e admitted into e vidence

. Sterling also 3 testified, base d on her tra ining a nd experience , that the use of a fore arm to stra ng le a person in the

manner L undg ren de scribed w as ca pable of causing death or

serious bodily

injury

. Two of L und g ren’ s neig hbors t estified about being awa kened in the early morning hours of April 18, 2009. J oanne Gordon, a retire d minist er and part-time piano teac her, testified that she was awa

kened by the sound of a car alar m at a round 3 a.m. She lay in bed, unable to f all back

The rec ord contains conflicting evidenc e about the ex ac t p hrasing of appellant’ s threa t. 2 L undg ren initially testified that appellant told her “if he went to jail, he was g oing to kill me and my children.” She l at er testified, in response to the prosec utor’s direc t questions, that when she was interviewe d that night she told law enfor ceme nt office rs that the threa t appellant made was that the Ary an Br otherhood would kill her or her family

. I n a subsequent aff idavit that she made in support of a protec tive-orde r application, which was admitted int o evidence, L undg ren indicated that appellant said “the brotherhood” would kill her or her children. Ultimately , L undg ren testified that at the time of trial, more than two y ear s afte r that night, she did not reme mber if the threa t appellant made wa s that appellant or the Ary an B rotherhood w ould kill her and her children. Sterling testified that she had to start a second body diag ram in order to document all of 3 L undg ren’ s injuries. 4aslee p, and later hear d the sound of people arg uing and coming down the stairs. She looked out her

bedroom window and saw a man “throw or shove” a woman int o an S UV parked across from her

car . She saw the ma

n follow the woman into the SUV and, once inside, shove the woman’s head 4 down. The driver backe d up very fast, hitting her car , and then took off. Gordon said that it did not
appea r to her tha t the woman wa s g oing w illingly

. Adrian Stone, a parts specia list and U.S. Army veteran , t estified that in the ear ly morning hours of April 18, he was awa kened by the sound of a car alar m. He looked out his window and observe d a male fig hting with a short fema le who was wea ring only panties. He descr ibed how the male forc ed the fema le, who was strug g ling to g et awa y , into an SUV. Stone identified appellant in the courtroom as the male he saw that morning

. He also descr ibed the blows that he saw appellant inflict on the female—strikes with an “ overha nded hammer

fist”—as she strug g led t o esca pe. He testified that in the m an n er ex ec u ted, the strikes wer e capa ble of causing death or serious bodily injury

. He said the fema le looked “ter rified” ; be cause he fea

red for her life, he called 911. Whil e 5 he wa s on the phone with 911, he he ard a loud cra sh and then saw

the SUV spee d off.

Gordon testified that it was dark and she could not see clea rly but she believ ed t h e two 4 individuals wer e a man and a woman, with the person who was shoving the other person being a man and the pe rson who wa s pushed into the SUV being a woman. Appellant objec ted to this testim ony , asser ting that Stone wa s not qualified to offe r such 5 an opini on. The trial court overr uled the objec tion as unt imely

. Neve rtheless, we note t hat either expert testimony or lay testimony may be sufficie nt to support a deadly wea pon finding

. English v. State , 647 S.W .2d 667, 668–69 (Tex. Crim. App. 1983); W ilson v. State , 391 S.W .3d 131, 137 (Tex. App.—Texarkana 2012, no pet.). Moreove r, the rec ord ref lects that during his service in the Army , Stone rec eived a dvance d training in unarmed c ombat.

5Two law enfor ceme nt office rs also testified on behalf of the State. J ack Kuhl, a patrol

office r with the New Br aunfe ls Police Depa rtment, testified about photogr aphs he took of appellant
at the time of his a

rre st on April 18, 2009. J ason Cline, a deputy with the Comal County Sheriff’ s Offic e, testified to his expert opinion about appellant’s g ang aff iliations. App el lant offe red no evidenc e at trial. The jury convicted him of ag g rava ted kidnapping (Count I ) and ag g rava ted assault (Count I I I ) but acquitted him of reta liation (Count I I ). Appellant el ec t ed to have the trial court assess punishment. He pleade d true to an enhanc ement alleg ation of a prior robber y conviction. The court assessed his punis h m en t at 40 y ear s’ imprisonment on each c ount, ordering the sentenc es to run conc urre ntly . Appellant now a ppeals.

DISCUSSIO N Appe l l ant raises four points of err or on appea l. The first three complain about the trial court’s admis s i o n o f evidenc e rela ting to his g ang membership. The fourth asser ts a double-jeopa

rdy violation.

Evid ence of G ang Af fi liation On appea l appellant contends that the trial court err ed in admitting evidenc e re lated
to his g ang aff

iliation during the g uilt-innocence phase of trial beca use it constituted impermissible char acte r-c onformity evidenc e in violation of Rule 404 of the Texas Rules of Evidence

. He further
arg ues that the prejudicia l eff ect of the evidenc e outweig hed any probative value, so it should have been e x cluded unde r Rule 403 of the Te x as Rules of Evidenc e.

6The Complained-of Evidenc e I n his first point of err or, appellant asser ts that the trial court err ed in allowing
L undg ren to te stify about his a ffiliation with the Ary an Br otherhood of Texas. I n his second point of err or, he maintains that the t ri al court err ed in admitting photogr aphs of appellant, taken at the time of his arre st, that depict g ang -re lated tattoos. I n his third point of error, a ppellant ar g ues that the trial cour

t erre d in admitting Deputy Cline’s expert testimony about his g ang

membership.

L undg ren’ s Testimony During cross-e x amination, appellan t ’s counsel questioned L undg ren about an aff idavit she had made in connec tion with seeking a protec tive order ag ainst appellant. I n an attempt
to reve al inconsistencies, counsel asked h er about specific statements she made in the aff idavit

conce rning the details of that nig ht, such as the timing of events, whe re they went, and how m uch alcohol she and appe l l an t h ad consumed. On redire ct examination, the prosec utor offe red the aff idavit under the rule of optional completene ss. See Tex. R. Evid. 107. Appellant objected to its admission, complaining th at i t wa s “bolstering .” The court noted that appellant’ s counsel had “opene d the door” by rea ding statements out of t he affidavit during hi s questioning and ruled that the State was entitled to show the contents of the aff idavit under the rule of optional completene ss. The following exchang e then oc curr ed:

DEFENSE COUNSEL : To the extent that it would g et into any other ext ra n eo u s matters -- THE COURT: Well, be specific . I f there ’s something in here that’s extraneous --

7DEF ENS E C OUNSEL : As it rela tes to the things that we have in the motion

in limi ne. THE COURT: Idon’t see a ny Ary an B rotherhood in he re. DEF ENSE COUNSEL : Okay

. PROS ECUTOR: Actually -- THE COURT: I s it in t here ? PROS ECUTOR: -- let’s see. I just want to double-c heck. I don’t want to lead [si c] the Court. I t say s “the B rotherhood.” The in limine deals with prior c onvictions. 6 THE COURT: Oh. PROS ECUTOR: “Af

filiation with the Br otherhood” isn’t neces s arily per se prior conviction.
THE COURT: Well, y eah. I think y our objec t i o n i s overr uled. I don’t think -- I think y ou opened the door once y ou started que stioning about it.

The court then admitted the affi d av i t

. I n subsequent questioning, the prosec utor asked L undg ren why she soug ht a protec tive order :
Q. Did y ou fill out this aff idavit, a sking that the Court issue an orde r re quiring [appellant] t o stay

so much of a distanc e aw ay from y ou? A. Yes. Q. Why ?

Ap p el l an t filed two motions in limine, neither of which was ruled on by the trial court. 6 One of the motions dealt with “all extraneous crime or m isconduct evidence, which is not alleg ed in the indictment” which “ includes, but is not limited to, the following : membership or aff iliation with the Ary an Br otherhood and/or other g ang s, g ang rela ted tattoos and includ i n g an y and all offe nses listed in State’s Supplemental Notice of I ntent and State’s No t i ce o f I ntent.” The other motion specifically

addre ssed prior c onvictions and extraneous off enses. 8A. Be cause he had threa tened my life and my children’ s life, and he was also aff iliated with the AB T. Q. What does ABT stand for? A. Ary an B rotherhood of Texas.
DEF ENSE COUNSEL : Your Honor, I ’m g oing to object -- I ’m g oing to object to the testimony

that she’s stating that he wa s aff iliated with that particular g roup. THE COURT: You ca

n take he r on voir dire , if y ou wish.
DEF ENSE COUNSEL : I don’t wish to do that at this ti me. THE COURT: Ver

y well.

T h e p r o s e c u tor then continued questioning L undg ren about her statements in the aff ida v it c o n c e r n in g the threa t appellant made

.

P re s er v at i on of err or is a sy stemic require ment on appea l. Ford v. State , 305 S.W .3d 530, 532 (Tex. Crim. App. 2009). A revie wing court should not addre ss the merits of

an issue that has not been p re s er v ed fo r appea l. W ilson v. State , 311 S.W .3d 452, 473–74 (Tex. Crim. App. 2010). To pres er v e a co m p l aint for appellate revie w, a party must have prese nted a specific and ti mely reque st, motion, or obj ection to the t rial cour t

. T ex . R

. App. P. 33.1(a) ; Pena

v. State , 353 S.W .3d 797, 807 (Tex. Crim. App. 2011); Peav ey v. State , 248 S.W .3d 455, 470 (Tex. App.—Austin 2008, pet. ref ’d). I n addi t i on, a party must secur e an adver se ruling

. Montanez

v. State , 195 S.W .3d 101, 104 (Tex. Crim. App. 2006); see Robe rts v. State , 220 S.W .3d 521, 533 (Tex. Crim. App. 2007); Tex. R

. Ap p . P

. 33.1(a) (2). Her e, the rec ord does not ref lect a ruling on
ap pellant’s objection. I nstead, the trial court offe red to allow counsel to take the wi t n es s o n v o i r dire, which he declined to do. This did not constitute a ruling , express or implied, on the objection,

9and counsel did not object to the court’s failure to r ule. See Tex. R. App. P. 33.1( a)( 2). Appellant failed to sec ure a

n adver se ruling

. I n addition, an objection is timely if made at the ear liest opportunity or as soon as the
g rounds for the objection become appar ent. Pena , 353 S.W .3d at 807; Gillenwaters v. State , 205 S.W .3d 534, 537 (Tex. Crim. App. 2006); see Saldano v. State , 70 S.W .3d 873, 889 (Tex. Crim. App. 2002) (“[T]he failure to object in a timely and specific manner during trial forf eits complaints about the admis sibili ty of evidence.” ). Her e, the g rounds for objection t o evidenc e of ap p el l an t ’s
g ang aff iliation we re appar ent when L undg ren testified that appellant was aff iliated with the AB T. Howeve r, appellant only objected afte r the follow-up question—“What does AB T stand for? ”—wa s asked a nd answe red. Thus, a

ppellant’s objec tion was untimely

. We find that appellant failed to prese rve his complaint about L undg ren’ s testimony ab o u t h i s g ang aff

iliation for appellate revie w. Howeve r, even had appellant prese rved hi s 7

com p l ai n t about the admission of this testimony for appellate revie w, for the rea sons discussed below, we find no reve rsible err or in the trial co u rt ’s admission of this testimony

. See infra pp. 14–21.

We also note that a party must not only object but also state the g rounds for the objection 7 with sufficie nt specific ity to make the trial court awa re of the complaint, unless the specific g rounds wer e appar ent from the context of the objection. Tex. R. App. P

. 3 3

. 1 (a )( 1 )(A) ; Clark v. State , 365 S.W .3d 333, 339 (Tex. Crim. App. 2012). “A g ener al or imprecise objection suffice s to prese rve err or only if the leg al basis for the objection i s obvious to the court and to opposing counsel.” Buchanan v. State , 207 S.W .3d 772, 775 (Tex. Crim. App. 2006). I n this case , appellant’ s objection asser ted no leg al basis for the objection at all. We rec og nize, howeve r, that the parties had discussed simil ar evidenc e of g ang aff iliation during the offe r of L undg ren’ s protec tive order aff idavit and the State’s proff

er of Deputy Cline’s expert testimony , so perha ps the g rounds wer e obvious to the court and the State. 10Photogra phs The State called New Br aunfe ls police office r J ack Kuhl to testify about photogr aphs he had taken of appellant at the time of his arr est. T h es e p h o t o graphs depicted appellant’ s upper body , fac e, nec k, arms, hands, a nd back a nd showed tattoos covering the upper part of a ppellant’s chest, his shoulders, both arms, the left side of his torso, and his stomach are a. Some of these tattoos

wer e, appar ently , rela ted to appellant’ s g ang aff iliation. Appellant objected to the admission of the photogr aphs on the g rounds that they wer e “testimonial,” irre levant, and “ impermissible chara cter ty pe evidenc e.” Howeve r, discussions outside the prese nce of the jury demonstrated that the State offe red the photogr aphs not to show the t attoos, but to show the i njuries on appe llant at that time, which cor robora ted Lundg ren’ s testimony that she foug ht ba ck and strug g led to esca pe during her ab d u ct ion. The trial court overruled appellant’s objections, noting that the t attoos wer e “ju s t t h e

8
way [appellant] was.” Appellant then asser ted that the prejudicia l eff ect of the phot o gra phs outweig hed the probative value and asked that they be excluded under Rule of Evidence 403. Ba sed

on the allega tions of t he retaliation count, t he trial court disagr eed and overruled appellant’s R ule 403 objection. 9

We note, howeve r, that the State subsequently used some of the photogr aphs during Deputy 8 Cline’s testimony to identify various g ang -re lated tattoos. Yet, even as evidenc e of g ang aff iliation, the photog raphs we re pr operly admitted. See infra pp. 14–19. On appea l, appellant does not complain about the t ri al court’s overr uling of his 9 “testimonial” or rele vance objections, but only asser ts that the photogr aphs wer e inadmissable char acte r-c onformity evidenc e under Rule 404(b) and should have been ex cluded under R ule 403 beca use the pre

judicial eff

ect outwe ighe d the proba tive value.

11Ex pert Te stimony The State called J ason Cline, a deputy with the Comal County Sheriff’ s Offic e, to testify about appellant’ s g ang aff iliation. Be fore the deputy testified in front of the jury , appellant

1 0 objected, compl aining that evidenc e of appellant’ s g ang membership was not rele vant, was more prejudicia l than probative under Rule 403, and was impermissible c h a r a c te r evidenc e. The trial court

overr uled the objections, finding that the evidenc e was “def initely materia l” to the reta liation count. Appellant then moved f

or a mistrial, which the court de nied. 1 1
Af t er establishing his cre dentials as an expert in g ang and tattoo identification, 1 2 Deputy Cline testified about his experience with various g ang g roups, i n cl uding “sec urity threa t
g roups” inside the prison, street g ang s, and “cliques.” He explained the dif fe re n ce s betwee n the
g roups, primarily rela ted to the level of structura l or g anization within t hem, and g ave examples of

The State initially proff

ere d the deputy ’s testimony outside the prese nce of the jury during 1 0 L undg ren’ s testimony

. At that point, appellant objected on the g round of rele vance , which the trial court, at that poin t, sustained. Appellant then indicated that it was not nece ssary to raise his Rule 403 objection at that time since the trial court ha d sustained his releva nce obje ction. Appellant does not complain on appea l about the trial co u rt ’s d en ial of his motion for 1 1 mistrial. Nor does he complain about the court’s ruling on his rele vance objection. He only asser ts that the expert testimony about his g ang aff iliation was inadmissable char acte r-c onformity evidenc e under Rule 404(b) and should have been excluded under Rule 403 beca use its prejudic i al effect outweig hed the pr obative value

. Deputy Cline testified that he was the g ang expert for the Comal County Sherriff ’s Offic e 1 2 and had specia liz ed training in g ang and tattoo identification. He was also a member of sever al law enfor ceme nt task forc es and investiga tive assoc i ati ons that deal specific ally with g ang s. He had sever al y ear s’ law enfor ceme nt e x perie nce rela ted to g ang s, in both prison and the county jail, a nd had 800 to 1,000 hours of training conce rning g ang and tattoo identification. He and another deputy cre ated the identification and trac king sy stem for documenting and trac king g ang members housed in the Comal County jail. I n addition, D eputy Cline te stified that he conducts tra ining se ssions on the subject for

other law enfor ceme nt ag encie s. 12eac h ty

pe of g roup. The deputy testified that he had experience dealing with the Ary an Br otherhood of Texas, a secur ity threa t g roup, and the Pecker woods, a clique that the Ary an Br otherhood and Ary an Circle (anothe r secur ity threa t group) use as a rec ruitment pool. He explained that the

rec ruitment proce ss involves coming into prison as a Pecker wood, and then having to prove y ourself
to achie ve membership in the Br otherhood or the Circle. Ba sed on his revie w of the Comal County Sheriff’ s Offic e jail file on appellant, Deputy Cline opined t h at appellant was a member of the Pecker woods. His opinion was based on appellant’ s various tattoos depicting P eckerwood aff iliation, such as a tattoo of the word “Pecke rwood” on his stomach as well as the numbers “2316”

on his rig ht inner fore arm. The prosecu t o r t h en showed the deputy the previously admitted 1 3 photogr aphs of appellant depicting the tat t o o s h e d escr ibed, and Deputy Cline testified that those
tattoos wer e “indicative of [appellant] being aff iliated with the clique the Pecker woods.” The deputy also testified that he did not know if appellant was curr ently , o r ever had been, a member of the Ary an B rotherhood. 1 4
Standard of Review

We revie w a t ri al court’s ruling on the admission or exclusion of evidenc e for an abuse of discretion. Till man v. State , 354 S.W .3d 425, 435 (Tex. Crim. App. 2011). A trial cour t

Acc ording to the deputy , the numbers 23 a nd 16 corr espond to the 23rd a nd 16th letters 1 3 of the a lphabet, W and P, which stand for “White” and “Pride or Power.” I n addition, on r edire ct, Deputy Cline testified that he had revie wed previous testimony of appellant at the protec tive order hear ing w here in appellant stated tha t 23 stood for “White” and 16 stood for “Pride.” Acc ording to the deputy , appellant testified at the protec tive order hear ing that he was not 1 4 curr ently a member

of the Ary an Brother

hood and said that he did not know i f he ever had bee n a member. Consequently , Deputy Cline ag ree d with the prosec utor that it was possible that appellant had bee n an Ar

y an B rotherhood me mber. 13abuses its discretion only if its decision “lies outside the zone of rea sonable disag ree ment.” Martinez

v. State , 327 S.W .3d 727, 736 (Tex. Crim. App. 2010); Montgomery v. State , 810 S.W .2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’ g ). We consider the ruling in light of what was befor e the trial
court at the time the ruling was made and uphold the trial court’s decision if it lies within the zone of re asonable disag ree ment. Billodeau v. State , 277 S.W .3d 34, 39 (Tex. Crim. App. 2009).
Character-Conformity Evidenc e

T e xa s Ru le o f E v ide nce 404(b) prohibits the admission of extraneous crimes , w r o n g s ,
or acts to prove a p er s o n ’s ch ar acter or to show that the person acte d in confor mity with that char acte r. See Tex. R. Evid. 404(b). Howeve r, otherwise inadmissible char acte r-c onformity evidenc e may be admissible under Rule 404(b) for some other purpose such as to show motive, opportunity , intent, prepa ration, plan, knowle dg e, identity , or abse nce of mistake or ac cident. Id. ; Montgomery , 810 S.W .2d at 387–88. This list i s illust rative—the exceptions are neither mutually exclusive nor collectively exhaustive. See De La Paz v. State , 279 S.W .3d 336, 343 (Tex. Crim. App. 2009). Fur

ther, “‘Rule 404(b) is a rule of inclusion rathe r than ex cl u s i o n . ’” Id. (quoting United States v. Bowie , 232 F.3d 923, 929 (D.C. Cir. 2000)). “The rule excludes only that evidenc e that is offer ed (or will be used) solely for the purpose of proving bad cha rac ter a nd hence conduct in confor mity with that bad char acte r.” Id. (citing Rankin v. State , 974 S.W .2d 707, 709 (Tex. Crim. App. 1996)) ( emphasis adde d).

Fur thermore , the court of criminal appea ls ha s explained tha t “ ‘it has long been the rule in this State that the jury is entitled to know all rele vant surrounding fac ts and circ umstances of the cha rg ed off ense; a n offe nse is not tried in a vac uum.’” W yatt v. State , 23 S.W .3d 18, 25 (Tex.

14Crim. App. 2000) (quoting Moreno v. State , 721 S.W .2d 295, 301 (Tex. Crim. App. 1 986)); see

Dev oe v. State , 354 S.W .3d 457, 469 (Tex. Crim. App. 2011) (“The jury is entitled to know all rele vant surrounding fac ts and circ um s t an ce s of the char g ed offe nse.”)

. Thus, g ang -member ship evidenc e may be admissible under Rule 404(b) if it is rele vant to show a non-cha rac ter purpose that, in turn, tends to show the commi ssion of t he crime. Ortiz v. S t a t e , 93 S.W .3d 79, 94 (Tex. Crim. App. 2002) (evide nce of incar cer ated defe ndant’s g ang aff iliation admissible under Rule 404(b) to show varie ty of non-cha

rac ter purposes rele vant to showing defe ndant’s g uilt) ; V a s q u ez v. State , 67 S.W .3d 229, 239–40 (Tex. Crim. App. 2002) (evide nce of appellant’ s g ang aff iliation relevant to show motive for alleg ed g ang -re lated cr ime).

As char g ed in this case , a person commits the offe nse of reta liation if he intentionally

or knowing ly threa tens to harm another by an unlawful act in reta liation for the service or status of another as a pr ospective w itness. See Tex. P enal Code § 36.06(a) (1)( A); see also C ada v. State , 1 5
334 S.W .3d 766, 770 (Tex. Crim. App. 2011) (discussing elements nece ssary to prove reta liation offe nse). Whether a particula r statement may proper ly be considere d to be a thre at is g overne d by

an objective stan dard—w hether a rea sonable person would fore see that the statement would be interpre ted by those to whom the maker communicates the statement as a serious expression of intent
to harm or assault. See Manemann v. State , 878 S.W .2d 334, 337 (Tex. Ap p . — Au s t i n 1994, pet.

Specifica lly , Count I I of the indictment alleg ed that on the da te in question, appellant 1 5 did then and there intentionally and knowing ly threa ten to harm Christine L undg ren by an unlawful act, by stating in words to the said Christine L undg re n , “i f I g et arr ested for this then the Ary an Br otherhood is g oing to come for y ou and kill y ou and/or y our children,” or words to tha t e ffe ct, in r etaliation for or on acc ount of the service or status of the sa id Christi ne L undg ren a s a prospe ctive witness. 15ref

’d) (discussing threa t element of telephone hara ssment). The meaning of statements can only be interpre ted by considering the context in which they are made. Id. at 338. Thus, threa ts should be considere d in light of their entire fac tual context, including the surrounding events and the rea ction of the listener s. Id. at 337.

I n t h is case , appellant’ s aff iliation with the Ary an Br otherhood, throug h his membership in the Pecker woods clique, was rele vant to the cre dibilit y of the threa t he made ag ainst
L undg ren and her children. His g ang membership was evidenc e of his capac i ty to car ry out the threa t, or have it car

ried out, which in turn made it more likely that he did in fac t make the threa t as L undg ren testified. Thus, appellant’ s g ang aff iliation was admissible , not for the purpose of showing ch ar ac t er confor

mity but to illumi nate the nature of the crime alleg ed. See Camacho v. Sta t e , 864 S.W .2d 524, 532 (Tex. Crim. App. 1993). His capa city to have the threa t car ried out—beca

use he was in fac t aff

iliated with the Ary an Br otherhood—wa s a circ umstance of the offe nse that tended
to prove the alleg ations in the indictment. The evidenc e was rele vant for a non-cha rac ter confor

mity
purpose a nd, there fore , was a dmissibl e under Rule 404(b). 1 6

The fac t that Deputy Cline opined that appellant was a member of the Pecker woods clique 1 6 rathe r than t h e Ar y an Br otherhood does not rende r the g ang -re lated evidenc e inadmissible. The testimony demonstrated that the two gan g groups are aff iliated. The jury is entitled “to draw rea sonable infere nces from basic fac ts to ultimate fac ts.” See Sorrells v. State , 343 S.W .3d 152, 155 (Tex. Crim. App. 2011) (quoting Clayton v

. State , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007)); Barnes v. State , 62 S.W .3d 288, 298 (Tex. App.—Austin 2001, pet. ref ’d). I n light of Cline’s testimony , the jury could have rea sonably inferr ed that appellant wa s aff iliated with the Ary an Br otherhood throug h his membership in the Pecke rwoods clique. 16Prejudice and R ule 403 Having deter

mined that evidenc e of the appellant’ s g ang aff iliation was rele vant for

a non-cha rac ter confor

mity purpose, we must next weig h its probative value ag ainst its pre judicial eff ect. Rule 403 a llows for the e x clusion of ot herw ise rele vant evidenc e whe n its probative value is substantially outweig hed by the dang er of unfair pr ejudice. Tex. R. Evid. 403. Rule 403 favor s the admission of rele vant evidence and car ries a presumption that rele vant evidenc e will be more probative than prejudicia l. Davis v. State , 329 S.W .3d 798, 806 (Tex. Crim. App. 2010); W illiams

v. State , 958 S.W .2d 186, 1 9 6 (Tex. Crim. App. 1997). “The term ‘proba tive value’ ref ers to the inhere nt probative forc e of an item of evidenc e—that is, how strong ly it serve s to make more or less probable the exis tence of a fac t of conseque nce to the litigation—coupled with the proponent’s need for that item of evidence.” Davis , 329 S.W

. 3d at 806. “‘U nfair prejudice ’ refer s to a tendency to
sug g est dec ision on an improper ba sis, commonly , though not nece ssarily , an emotional one.” Id. All testimony and phy sical evidenc e are likely to be prejudicia l to one party or the other. Id. ; Jones , 9 4 4 S.W .2d at 653. Thus, “[t] o violate Rule 403, it is not enoug h that the ev i d en ce i s ‘pre judicial’—it must be unfairly prejudicia l.” Vasquez , 67 S.W .3d at 240 (Tex. Crim. App. 2002) (e m p h as i s in orig inal); Rogers v. State , 991 S.W .2d 263, 266 (Tex. Crim. App. 1999). I t i s o n l y when there exis ts a clea

r disparity betwee n the deg ree of prejudice produce d by the offe red evidenc e and its probative value that Rule 403 is applicable

. Davis , 329 S.W .3d at 806; W illiams , 958 S.W .2d at 196. The potential improper basis here would be to attempt to show that appellant was a bad person and acte d in confor mity with his bad char act er s i m p l y b eca use of his g ang aff

iliation.

17Howeve r, that was not the State’s purpose in eliciting the evidenc e. The State’s purpose was to show

the jury that appellant’ s statement to L undg ren was in fac t a threa t. Wit hout evidence of his aff iliation with the Ary an Br otherhood, the jury would have been less able to understand appellant’ s
statement as a cre dible threa t. We conclude that the t ri al co u rt d i d not err in concluding that the potential char acte r-c onformity infere nce did not substantially outweig h the rele vant purpose of showing the cre dibilit y of the threa t which, in turn, tended to show that the threa t was in fac t made. 1 7

For the rea sons set forth above, we cannot say that the trial court abused its discretion in admitting L undg ren’ s testimony , the photogr aphs of appellant depicting his g ang tattoo s , or Deputy Cline’s testimony

about his g ang membership.
Harm Analysis
Even assuming the trial co u rt err ed in admitting the complained- of evidenc e of appellant’ s g ang aff

ili at i o n , we would never theless conclude that the err or did not constitute

reve rsible err or. See Tex

. R

. Ap p . P. 44.2(b). The err oneous admission of evidenc e, including expert testimony , is non-constitutional er ro r. Jessop v. State , 368 S.W .3d 653, 678 (Tex.

Appellant asser

ts in his brief that the trial court’s admission of the evi d en ce wa s also 1 7 er roneous beca

use even if rele vant to the reta liation count, the evidenc e was prejudicia l t o t h e rema ining counts. Howeve r, appellant did not articula te this complaint to the trial court and never asked the t ri al court to sever the offenses for trial despite knowing t hat t he S tate int ended to offe r evidenc e of a

ppellant’s g ang aff

iliation because the State g ave pr etrial notice of such intent. Appellant also complains in his brief that the trial court failed to conduct the balanc ing test mandated by Rule 403, but i n s t ead “skip[ped] over” the require ment beca use of the “mer e alleg ation” in the reta liation count. Howeve r, the trial court is not require d to perf orm the Rule 403 balanc ing test on the record, and when the rec ord i s silent, appel l ate courts must presume that the trial court perf

ormed the require d balanc ing test. W illiams v. State , 958 S.W .2d 186, 195–96 (Tex. Crim. App. 1997); Kappel v. State , 402 S.W .3d 490, 494 (Tex. A pp.—Houston [14t h Dist.] 2013, no pet.); Hitt v. State , 53 S.W .3d 697, 706 (Tex. App.—Austin 2001, pet. ref ’d). 18App.—A u s t i n 2 0 12, no pet.); Kirby v. State , 208 S.W .3d 568, 574 (Tex. App.—Austin 2006, no

pet.); see Coble , 330 S.W .3d at 280; Casey v. State , 215 S.W .3d 870, 885 (Tex. Crim. App. 2007).
Non-c onstitut ional err or is reve rsible only if it aff ects the substantial rig hts of the acc used. See Tex. R. App. P. 44.2(b); Barshaw v. State , 3 4 2 S.W .3d 91, 93 (Tex. Crim. App. 2011). We will not
overturn a criminal conviction for non-constitutional err or if, afte r examining the rec ord as a whole,

we have fair assura

nce the err or did not influence the jury , or influence d th e j u ry o n l y s l ightly

. Barshaw , 342 S.W .3d at 93; Kirby , 208 S.W .3d at 574.

I n assessing potential harm, our focus is not on whether the outcome of the trial was
proper despite the err or but on whether the err or had a substantial or injurious eff ect or influence on the jury ’s verdict

. B a rshaw , 342 S.W .3d at 93–94. We revie w the entire rec ord to asce rtain the eff ect or influence on the verdic t of the wron gfu l l y admitted evidenc e. Id. at 93; see Coble , 330 S.W .3d at 280 (in conduc ting harm analy sis “ we examine the entire trial rec ord and calc ulate,

as much as possible, the probable impact of the err or upon the rest of the evidenc e”)

. We consider all the evidenc e that was admitted at trial, the nature of t h e ev i d en ce supporting the verdic t, the char acte r of the a lleg ed er ror, a nd how the evide nce might be c onsidered in c onnection with other evidenc e in the case . Barshaw , 342 S.W .3d at 94. We ma y also consider the jury instructions, the parties’ theories of the case , closing arg uments, voir dire, and whether the State emphasized the

err or. Id .; Morales v. State , 32 S.W .3d 862, 867 (Tex. Crim. App. 2000). I n analy zing the err oneous ad m ission of expert testimony , we may consider, among other things: (1) the stren gt h o f t h e evidenc e of the appellant’ s g uilt; (2) wh ether the jury hear d the same or substantially simil ar admissible evidenc e throug h another source ; (3) the streng th or wea kness of an expert’s conclusions,

19including whether the ex pert’s opinion was effe ctively ref uted; and (4) wh ether the S tate directed the jury ’s attention to the expert’s testimony during arg uments. See Coble , 330 S.W .3d at 286–88.

I n her testimony , L undg ren descr ibed the events of that night, providing details of multipl e choking incidents and her abduction by appellant as he drag g ed her by her hai r t o her
Ex plorer, striking her repe atedly as she strug g led to esca pe. Her testimony was corro b o rated by
ey ewitness testimony , photogr aphic evidenc e, and medical evidenc e. The prosec u t o rs briefly mentioned evidenc e of appellant’ s g ang aff iliation in closing arg

ument, but only in connec tion with the reta liation offe nse to demonstrate the cre dibilit y of the threa t appellant made. The State did not overly emphasize the evidenc e otherwise. Fur thermore , we note that the jury acquitted appellant of the reta liation char g e, sug g esting that the evidenc e of his g ang aff iliation did not influence the jury

. After examining the rec ord as a whole, including the streng th of the State’s case , we have fair assura

nce that the err oneous admission of evidenc e of appellant’ s g ang aff iliation, if it was

err or, did not influence the jury or had but a slight eff ect. There fore , any er ro r i n admitting the complained- of evide nce w as har mless.
For the fore g oing rea sons, we overr ule appellant’ s first, second, and third p o ints of er ror.

Claim of Dou ble Jeopardy

I n his fourth point of err or, appellant asser ts that his convictions for both ag g rava ted kidnapping and ag g rava ted assault constitute double jeopar dy

. See U.S. Const

. amends. V, XVI

. Acc ording to appellant, the ag g rava ted assault char g ed in Count I I I was a lesser- included offe nse of

20ag g rava

ted kidnapping as cha

rg ed in P ara g raph A of Count I . Thus, appellant a rg ues, he r ece ived multipl e punishments for the sa me offe nse. T h e D o u b le Je o p a r d y Cl ause of the United States Constit ution provides th a t n o p e r s o n shall be subjected to twice having life or limb in jeopar dy for the same offe nse. U.S. Const. amend.
V. This clause protec ts ag ainst multipl e punishments for “the s am e” offe nse. Brown v. Ohio , 432 U.S. 161, 1 6 5 (1 9 7 7 ); Ex parte Cavazos , 203 S.W .3d 333, 336 (Tex. Crim. App. 2006). Gene rally , to prese rve a multipl e-punishm en ts double-jeopa rdy claim for appellate revie w, a defe ndant m ust object at or before the time the charg e is submitt ed to t he jury

. Gonzalez v. State , 8 S.W .3d 640, 642 (Tex. Crim. App. 2000). An appellant is excused from this prese rvation require ment and allowed to raise a multipl e-punishments double-jeopa rdy claim for the first time on
appea l only when “the undisputed fac ts show that the double jeopar dy violation is clea rly appar ent on the fa ce of

the re cord, a

nd when e nforc ement of the usual rules of pr ocedur al def ault serve s no leg itimate state interests.” Id. at 643; see also Langs v. State , 183 S.W .3d 680, 682 (Tex. Crim. App. 2006) (“[T]he f

ace of the trial court rec ord must c lear ly show a double jeopar dy violation before a defe ndant m ay succe ssfully raise a ‘mul tiple punishment’ double j eopar dy claim for the first time

on appea l.”). Appellant raises his double-jeopa rdy claim for the first time on appea l. There fore , we
must evalua

te whether the fa ce o f the trial rec ord clea rly shows a double-jeopa rdy violation. See Langs , 183 S.W .3d at 687 (citi ng Gonzales v. State , 973 S.W .2d 427, 431 (Tex. App.—Austin 1998), aff’d , 8 S.W .3d 640 (Tex. Crim. App. 2000)); Ji me n ez v. State , 240 S.W .3d 384, 417 n.19 (Tex. App.—Austin 2007, pet. ref ’d).

21Alternative Theories When separate theorie s for an offe nse are submitted to the jury disjunctively

in the jury char g e, a double-jeopa rdy violation is not clea

rly appar ent on the fac e of the rec ord if one of the theories charg ed would not constitute a double-jeopardy violation and there i s sufficie nt evidenc e
to support that valid theory

. Langs , 183 S.W .3d at 687; Gonzalez , 8 S.W .3d at 641–42. The fac t that the jury ’s verdic t could have relied on a theory that would violate the Double J eopar dy Clause is not sufficie nt to show a constitutional violation cle ar l y ap p ar ent on the fac e of the rec ord. Langs , 183 S.W .3d at 687; Gonzalez , 8 S.W .3d at 643.

The indictment in this case char g ed appellant with ag g rava ted kidnapping under four alterna tive theories in four separ ate pa

rag raphs:

• Para gra ph A alleg ed that appellant abducte d L undg ren to fac ilitate the commission of ag g rava

ted assault with a deadly wea pon, see Tex. Penal Code § 20.04(a) (3);

• Parag raph B alleg ed that appellant abducte d L undg ren to fac ilitate the commission of retaliation, see id. § 20.04(a) (3);

• Parag raph C alleg ed that appellant abducted L undg ren with int ent t o inflict bodily injury , see id. § 20.04(a) (4); and

• Parag raph D alleg ed that appellant abducte d L undg ren with intent to terror ize her, see id. § 20.04(a) (5).
Only the theory

laid out in Parag raph A of Count I of the indictment—ag g rava ting the kidnapping offe nse by alleg ing that appellant acte d with the intent to fac ilitat e t h e commission of ag g rava ted assault—pre sents double-jeopa rdy conce rns.

22Even assuming that the ag g rava ted kidnapping offe nse as char g ed in Parag raph A of

Count I is the same as the ag g rava ted assault offe nse char g ed in Count I I I for doub l e-jeopardy
purposes, the fac e of the rec ord does not show a multipl e-punishments violation beca use the jury ’s
g ener al verdic t of g uilty of ag g rava ted kidnapping could have rested on one of the other para g raphs of Count I of the indic t m en t

. T he jury was prese nted with evidenc e that appellant abducte d
L undg ren with the intent to fac ilitate the commission of ag g rava ted assault (Para g raph A), abducte d
L undg ren with the intent to inflict bodily injury on her (Para g raph C), and abducte d L undg ren with the intent to terror ize her (Para g raph D). Eac h of these theories was then listed in the disjunctive 1 8
in the jury char g e, ref

lecting that the State neede d to prove only o n e of the theories to prove the
ag g rava ted kidnapping char g e. The jury could have convicted appellant of ag g rava ted kidnapping without f inding that he acte d with intent to f acilitate the commission of ag g rava ted assault. Ba sed on the evidenc e, the jury

could have found instead that he acte d with intent to inflict bodil y injury
to L undg ren or with intent to terror ize her. I f the jury convicted under either of those two theories, there is no double-jeopar dy violation. Bec ause w e do not know on which theor y the jury relied in convicting appellant a

nd there is sufficie nt evidenc e to support the ot her the ories submitted, there is no double-jeopa

rdy violation clea

rly appar ent from the fac e of the rec ord. See Langs , 183 S.W .3d
at 687 (whe re jury char g e includes alterna tive theories, only one of which would constitute double jeopar dy , err or is not appar ent on fa ce of rec ord).

Be cause the jury acquitted appellant of the re t al i at i o n o ffense, we do not include the 1 8 kidnapping theory that appellant abducte d L undg ren with the intent to fac ilitate the commission of reta liation (Parag raph B ) in our ana ly sis. 23Distinct Cri minal Acts
Moreove r, the protec ti o n ag ainst double jeopar dy does not apply to separ ate and distinct offe nses that occur during the same transac tion. Ex parte Milner , 394 S.W .3d 502, 513 (Tex. Crim. App. 2013); Spradling v

. State , 773 S.W .2d 553, 556 (Tex. Crim. App. 1989). Thus, if two differ ent attacks occur , even if close in time, a defe ndant may be char g ed with two separate assaultive offe nses. See Urtado v. State , 333 S.W .3d 418, 424 (Tex. App.—Austin 2011, pet. ref ’d);
see, e.g. , S

a n ch ez v. State , 269 S.W .3d 169, 171 (Tex. App.—Amar illo 2008, pet. ref’d) (holding that no double-jeopa

rdy violation occur

red wher e defe ndant was char g ed with both assault causing bodily injury and assault by threa t a g ainst same victim be cause , “[t] houg h rathe r close in time, the latter a rose a fter a

brea k from the f

ormer” ).
Her e, the evidenc e shows that distinct criminal acts may have supported appellant’ s convictions for ag g rava ted assault and ag gra v ated kidnapping

. L undg ren testified to multipl e instances of choking

—when appellant pinned her ag ainst the wall, when appellant pinned her on the b ed , and when appellant tackled her outside her apartment and pinned her to the ground—a s well

as subsequent injuries sustained when appellant drag g ed h er t o the Ex plorer and then when he slammed her head into the cente r console, rende ring her unconscious. Any one of the three choking instances could form the basis of a charg e of ag g rava ted assault, separ ate from a char g e of
ag g rava ted kidnapping to fac ilitate the commission of ag g rava ted assault based on the injuries i n fl i cted during the drag g ing or afte r appellant forc ed L undg ren into the car . See Urta d o , 3 3 3 S.W .3d at 425 (bec ause assaults occur red in identifiable, discrete stag es, even though close in time,

24appellant was not punished twice for same offe nse, but for two differ ent crimes)

. Thus, a

double-jeopa

rdy violation is not appar ent from the f ace of this rec ord. See id.
Conclusion Regarding Double Je opardy

The re co rd befor e us does not clea rly ref lect a double-jeopa

rdy violation beca

use (1) separ ate theories for ag g rava ted kidnapping , with supporting evidenc e, wer e sub mi tt e d to the jury disjunctively , and (2) the evidenc e demonstrates that separ ate an d d is ti n c t c r im in a l a c ts could support the convictions. There fore , beca use app el l an t d i d not object at trial, he is not excused from the
prese rvation re quirement a nd has for feited his rig ht to raise his double -jeopa rdy claim for the first time on appea l. See Langs , 183 S.W .3d at 687. We overr ule appe llant’s fourth point of er ror.

CONCLUSION We hold that the trial court did not abuse its discretion in admitting the evidenc e of appellant’ s g ang aff

iliation and, further , that any err or in the admission wa s harmless. I n addition,

we hold that no double-jeopa rdy violation is appar ent from the fac e of this rec ord. Acc ording ly , we aff irm the judg ments of conviction.

__________________________________________ J . Woodfin J ones, Chief Just ice
Be fore Chief J ustice Jones, J ustices Rose and Goodw in Affir med Filed: September

11, 2013 Do Not Publish 25