NO. 07-05-0185-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D MARCH 23, 2006

______________________________ JIMMY G AWAN YOUNG, Appellant
v. THE STATE OF TEXAS, Appellee

_________________________________ FROM THE 223 RD DISTRIC T COURT O F GRAY COUNT Y; NO. 6577; HON. LEE W ATERS, PRESIDING

_______________________________ Memorandum Opinion

_______________________________ Before QUINN, C.J., and REAVIS an d CAMPBELL, JJ. J immy Gawan Young (appellant) appeals his conviction for involuntary manslau ghter. Via three issues , appellant contends the 1) ev idence wasinsufficient to support his convi ction and 2) trial court erred by admitting evidence of gang activity which was i rrel evant

to the offense. We affirm.2 Background Attrial, Pampa p olice officer Kei th Morris (Morri s) testified t hat on April 3 , 2003, he responded to a call to investigate sh ots bein g fi red wi th on e per son d own at 10 40 H uff Road in Pampa, Gray

County, Texas (known as “the Hood”) around 6:00 p.m. When he and Officer Williams arrived, Mor ris obse rved “peopl e every where runn ing around”and “there was panic king goi ng on.” M orris, upon exiting his vehi cle a nd walki ng towar ds people waving him over, observed Tr acy Williams (Tracy ) “betwe en two cars in front of the house there, and she had what appeare d to be a gunshot w ound to the chest.”CPR was started and continued until the ambulance arrived. Tracy later died fro m her injuries. Morris spoke wit h Reg gie Willi ams (Reggi e), Angela B urnley (Angela)

and Michael Williams (Michael) at the scene. After receiving informatio n from the witnesses, Morris asked t hat thecrimescene tape be moved back to not only encompas s the yard but the street in front of the house. He also test ified thatMichael was wearing red clothing which indicated he was af filiat ed with the Bloods ga ng. He also noticed spent sh ell casin gs around the front porch ar ea. Later, one of the cars was found with bull et holes in theback passenger w indow. Furthermore, according to Morri s, a Nathan Williams (Na than) was present and began yelling at an older man at a neighborin g house. Nathan was wearing blue, the color identified with the Crips. Ac cording to M orris, the Bloods and the Crips are rival gangs. Nathan shouted out to theman “that he was a g angster and t hat this man that w as upset with him needed to res pect his gan gster stat us.” The resi dence located at 1 040 Huff or Miss Hattie’s house is the dividing line for the two gangs. Later, some shotgun she lls were3

found at the south side of Miss Hattie’s house . Furthermore, a .357 revolv e r was found underneath a mattres s just behind the house. On cross-ex

amination, Mor ris admitted that whil e he wa s worki ng to s ave T racy, several peoplewal ked thr ough t he cri me scene, one of the cars was moved twice which also would have disturbed thecri me scene. Furt hermore, he had r eceived confli cting stories as to who w

as the shooter an d it came dow n to two pers ons, Curtis Wine (W ine) and “somebody named Slim,” w ho was later identified as appel lant. The officer noted that approximately 20 to 30 rounds w er e fired. He also had found out about an incident between appellant

and Wine that had occurred the ni ght before. Wine was angry because
someone had stolen money from him and “he w

as going to get revenge.” Als o, the officer had learned that t here were, allegedly , up to four shooter s during t he incident. Next, Joey Williams (Officer Williams) with the Pampa Police Department testi fied thathe was in th e car with Morris when they received the dispatch to 1040 Huff. Once there, he observed a large group of people in the f ront yard and a female lying in between two cars. He further recog nized Nathan , who was having a heated argument with an older black male. He heard the older black male sh out that “this s tuff had to stop.” Nat han replied that the man “had bett er respect his . . . gangster status.” Furthermore, the officer testified that Nat han w as claiming to be a member of the “ Crips,” and later on Na than claimed he didn’t care what had happened “because he al ready made his money.” N athan
was dressed in bl ue which w as significant since the Crip s dres s in bl ue. Offi cer Willi ams t estified that he helped in the search for w eapons and that he found a .357 pisto l underneath a mattress behind a vacanthouse l ocated at 1052 Huff Roa d along wit h some “unfired .357 cartridges.” The pistol was introduced into evidence as State’s exhibit 1 2.4

Officer Heather Ratz laff (Ratzlaff) w ith the Pampa police depart ment arriv ed to find approximately a hundred people, several were runni ng and wal king v ery fast. Shetestified thatshe knew

some of them, one was O ngel Kwame Burnley ( Kwame), w ho was dres sed in red and associated with the Bloods. She also recogniz ed Cand y Burn ley (al so kn own as Angela), Reggie and M ichae l. S he looked for gun s because the cal l was on “ ‘shots fired’ and one person was down.” Ratzlaff, further, testified that she obse rved a bullet hole through the window

of a “little bl ac k vehicl e.” She also testified that “ [w]e hav e several differentgan gs in the town and one being the Crips w hich are dres sed in blue and t he other being the Bloods which dress in red. ” She began as sisting in chest compr essions
on the victi m. According to Ratzl aff, one of the two v ehicles sur roun ding th e victim was moved in or

der tomake r

oom f or the pa ramedics. She then began ta king witnesses’ statem ents and a witne ss, Herber t Wilbon, told her that he, after hearing g unshots , sa w Wine running from t he crime scene with a g un in his hand. She f urth er sp oke wit h two juvenile gi rls wh o told her “ab out seeing thetwo men shoote rs.” The g irls were taken to the police sta tion to giv e statements since they were juveni les. She als o was advised of another gun bei ng found on Prair ie Street, w hich was identified as a Tech 9.

Next, Santos Mathis , testified that h e was in t he frontyard acr oss from Miss Hattie’s house. He heard tw

o guys ar

guing and s aw one guy wavi ng a gun, he ran into the house and while in the house he heard gunshots that sounded like a revolver. He further testified that the gun he s aw looked l ike State’s e xhibit 12. Angela testified that s he was li ving at 1040 Huff on th e day of t he shooting. She
was the vict im’s aunt. She testified thatTracy had j ust driv en up in a lit tle black ca r after5

going to the store and was get ting out of the car w hen Angela came ou t onto the porch in frontof th e hou se. Trac y was s tand ing by the d river’ s si de towar ds t he fr ont o f t he c ar. Angela then heard gunshots and r an to take cover. She was with he r son, Kwame. After the gunshots stopped, she went b ack o ut on the p orch and s aw Tra cy lying b etwee n two cars, a white oneand a black one. Furthermore, the only per son she saw fir ing a weapon was “Curtis” and that it was a “9mm.” Next, Aaron Keith McWilliam s, w ho wa s wi th PampaPolice Depar tment at the ti me of the shooting testified thathe, too, over heard an argument between Nat han and another black male wherei n Nathan stated th at he didn’t car e what had happened, he had “made [his] money for the day.” Nathan was also we aring blue, according to McW illiams. Furthermore, he stated that “ the people whowill wear the r ed colors tend to stay to the north of 1040 Huff and the people that wear the blue colors tend to stay to the south of 104 0 Huf

f.” Both color

s could be seen at 1040 Huff because family members of the residents affili ated with bo th groups. Mayra Heredia, one o f the juv e niles taken tothe police depar tment to give a statement, testified that she wasin t he ho use a cro ss fr om 10 40 H uff

and hea rd shoot ing. She looked out the w indow and saw “[a] bl ack man in a red shirt w ith a gun.” She looked to where the man was pointing with the gun and she saw another man beh ind a bush wearing a blue s hirt. She saw the man in red s tanding and shoo ting, then, hestopped, reloaded and began walking tow ards the house at 1040 Huff and began shooti ng again. She further testified that someone was shooting from the area w here the man behind the bush was located but

could not tell in what di rection. Shefurther recal led the two vehicles parked in the dr iveway , a black one par ked next to a white one.6

Morse Burroughs, who was employed by t he Gray C ounty Sheri ff’s office, photographed the crime scene. In testifying to State’s exhibit 2 0, the picture of the bullet hole in the black Nissan, Burroughs explain ed t hat “[t]his is a photograph of th e driver’s side of the [black Ni ssan] that was parked in t he yard ind icating a b ullet hole or what appears to be a bullet hole in the w indow.” State’s exh ibit 21 was a picture of “t he opposite side of that sa me veh icle show ing w hat appe ars tobe two exi t holes from thesame projectile. ” State’s ex hibit 24, acco rding to Burroughs, is a photog rap h of the “interi or of this same bl ack v ehicl e. The cone [ev idencema rkers] is co vering a fragment of wha t appeared to be a bullet. ” The State called P aul Brown, w ho was als o present at 1040 H uff on the day of the shooti ng. He testified that he knows appellant as “Slim” and that appell ant was als o at 1040 Huff

on April 3 rd . Furthermor e, Brown testified that he had been charged w ith manslaughter

in connection with thi s case. After adm onis hing h im, B rown invoked hi s fifth amendment right to remain sil ent for the remainder of examination. Donnie Brown, a detectiv e with the Pampa Police Depar tment, testified that

he took possession of the revolv er found under the mattres s, which gun wasState’s ex hibit 12. It
was found with one s pent cartrid ge and five l ive rounds . In regar ds to the bl ack Nissan, the detective noticed “the one bullet ho le in the left rear window ,” and he further “noticed thatthere was[sic] tw o holes on the other

side.” The s ide with two hol es was “ the passenger’s side of the veh icle.” This information was depic

ted in State’s exhibits 20, 21 and 23. Brow n further testifie d from the autopsy report that i ndicated Tracy had received
a gunshot w

ound to the chest; however, there was “no gunpowder residue on the surface of the skin.” Furthermore, the rep ort indica ted that “‘a medi um caliber deformed7

(mushroomed) bullet [was] recovered in the right back in an area just beneath the skin surface.’” Thi s gunshot w ound caused Tracy ’s death. Dete ctive Brown al so testified that a later s earch wasconducted at 1040 Huff where
a casing w

as found near the area w here Tracy had been shot. The casing came from the revolver, State’s ex hibit 12. A pr int was al so lifted from the revolv er whic h matched appellant’s. The officer assisted in inves tigating and questioning witness es which led him to obtain a warrant for appellant’s arrest. On cross-examination, the detec tive admitted that six people including appellant were arrested in conn ection with the death of T racy
. Furthermore, the bullet frag ment could not “bedirectly related to the .357 revolver.” And, the officer observ ed no evidence , during th e autopsy, tha t a bullet jac ket had struck the victim’s body. The officer further testified that the jac ket or casi ng l ocat ed at 1040 Huff
was found approximatel y 19 days after the shooting incident. And , during th e 19 days, the crimescene was unprotected and peo ple were free to walk through the area. Brown also test ifie d tha t thepur posefor h im g oing to H uff on the 22 nd was to se e if he could find the jacket. This was so because once th e DPS rep ort on the bullet was received wherein it stated the bullet

was miss ing its j acket or casi ng, then Brow n understood why there were two holes on the other si de of the car w indow. GaryHenderson (H end erson ), who w as employed by

the Texas Depa rtment of Public Safety, TexasRanger Divis ion, at the time of the offense, testified that h e was cal led into the invest igation by Detectiv e Dupy of the Pampa Police D epartment. The reason for his involve men t was b ecau se De tect ive Dup y “ had p osse ssi on of a vehicle that was s eized atthe scene and he s aid that he had a s ituation th at he didn’t q uite understand.”That situation involved his inability “to figure [] out as far as he had one bullet hole going in the8

back left side w indow of that vehicle and tw o h oles exitin g the right r ear window

of that vehicle, and he said he could not find a secon d bullet anywhere and he couldn’t find where the second bullet entered the v ehicle, and so he requested my assistance i n evaluating and looking at

the vehicl e.” On Apri l 11, 2003 , Hend ers on ar rang ed for a tes t fir

e of a firearm into the w indow of a car whi ch was the same as the black Nissan. The g un used for the test was a 9 mm. The test was “to determi ne. . . the posi tioning of [the] vehicle at thatlocation.” And, its resul ts rev ealed “ that th e bull et came from left to right on the vehicle thatwas parked at 1040 Huff Road.” And, again, t he trooper test ified that “based on w hat we’ve been able to determine , [the bullet] would have been on the lef t side of that vehicle traveli ng through to t he right si de where y our two hol es are located on the right-hand side of that vehic le going toward the whit e vehicle parked next to it.” Furthermore, “a small piece of copper, what appeared to . . . be jacketing com monly used in jacketed bullets” was found inside the vehicl e while at the wrec ker

yard. According to Henderson, “[ i]t appeared to me that a sing le bullet enter ed that hole, eit her the bullet itself being a lead-tipped bul let, if that’s what it was at the time, and would have had to have broken in-half , therefor e exiting side by s ide. Or if it was a jacketed bullet, it would have to have separ ated from the jacketin g, the lead portion of the bullet go ing throu gh one an d the jac keting goin g through the other.” Henderson believed t hat the jacket might have been “located in the victi m’s clothing
or in the area of w here the two vehicles were at t he time of the shooting .” Upon searchi ng the area outside of

10 40 Huff on April 22 nd , Henderson obs erved the w hite car to s till be in the position it was in on April 3 rd and a Geo Pr i sm was par ked next to i t. He looked9

between the two car

s and “immediately observed w hat [he] knew to be a copper j acketing on the ground.”The trooper conc luded in his r eport that “‘based on what writer observed in the test firing, evidence would ind icate the vehicle that had the bull et holes in th e rea r pas seng er wind ows located at the scene of the shooting had been pulled s traight i nto the d rivewa y at 1040 Huff Road, not b acke d in. This evi dence is based on the beli ef the bullet that killed Tracy Williams is t he sam e bullet that tr aveled thro ugh the rear passenger windows of the vehicle.’” Henderson’s report further represented that “the test firing evidence would further indicate to writer that only o ne bullet entered the vehicl e from the left side even though there were two exit hole s on the right rear p asse nger wi ndo w. Evide nce i ndic ated the b ulle t may h ave fragmented or dislodg ed from its jacket, thu s cau sing the similar and close proximal exit holes.” Connie Lockridg e testified to findi ng 9 mm casing s in the yard at 1052 Huff, south of the vehicl e. Aaron Full erton, a forensics firearm examiner wi th the Texas Department of Public Safety Cri me Laboratory in Lubbock, Texas, testified that he receiv ed both guns thatwere found in connection with the April 3 rd incident and conducted testson them. In regard to the Tech 9, five of the ten 9mm casings s ubmitted by thepolice were fired from the gun; howe ver, fiv e were not. In regar d to the .357 revolver, all five .35 7 calibe r casings submitted for testing were fired from that gun, incl uding State’s

exhibit 5 9, the brass j acket. Furthermore, regarding the bulle t rem oved from Trac y, Fullerton testified as fo llows: “This [the bulle t] was consistent with not actually being a bullet but a bullet core which is th e interior part of a bullet that t he jacket sur rounds, and the j acket is w hat’s going to actually pickup the marking s left behind by the gun. There w ould be no marki ngs left behind by the gun on the interior porti on of the bullet cor

e. So I was not able to identify or eliminate10

th is as being fir

ed by either

of those firearms.”Further, i n his report t o the polic e department, Fullerton r epresented that “ ‘[t]he bullet core cannot be identi fied or eliminated
as having been fired from either of the submi tted firearms.’ ” Also, the 9mm an d .357 bullets
are “virt ually id entical bull ets in the weights and thediameter.” Claude Stephenswith the Randall County

Sheriff’s off ice identified a fing erprint li fted from the .357 revolver as that of appellant’s. Kwametestified that heknew appell ant and Wine. He was present at 1040 H uff on the day of the shooting. He was the victim’s cousin, Miss Hattie was his gran dmother, Michelle Burnley w

as his sis ter, and Angel a was hismother. He testified th athe normally hun g out at 1040 Huff (Mis s Hattie’shouse). He w as more associ ated with B loods and would wear re d but he as sociated with bo th gro ups. W ine t old K wame of t he ro bbe ry, however, he did not indi cate that he “was out for blood, revenge.” In th e afternoon of April 3 rd , Kwame w as standing outside at 1040 H uff with Wine, Michael and Jel ani McNeal (McNeal, also know n as J Rock) . Tracy w as pulling u p in a car

at the time. Kw

ame walked south to 1052 Huff and saw Paul Brown alo ng wit h a lot of people, w ho were standing around. After

Tracypulled up, she began walking toward the porch between the two cars (a white Li ncoln and a blac k Nissan) . Kwame was in the yard w ith Wine, and McNeal was near the black Nis san. He heard gunfire and saw tha t appel lant ha d starte d shoot ing. Appellant was in the str eet. He also observed Wine with a Tech 9. Appellant w as using “some ki nd o f revolv er.” He di d not observ e anyone else with a g un. The people in th e yard ducked b ehind t he ca rs. Kwa me te stif ied t hat t he gu nfi ght was abou t a rob bery. W hile he was walking back to Miss Hattie’s house f rom 105 2 Huff , prior to the sho oting, appellant

was walking beside him in the same direction and that is when Kw ame observed11

appellant

with a g un. Then, Wine ob tained a gun. According to Kwame, no one in the Hood had gotten into a gunfight until appellant sho wed up approximately two weeks prior to the incident. All of the part icipants had gotten along and if there were any pr oblems they fough t with their fists and not with guns. Kwame admitted that dru gs wer e sold in the Hood. Evelyn Turrentine (also known as E velyn Turrentine Rog ers) testi fied that she and Wine were “seeing each other” w hen the shooting occurred. On April 2, 2003, an incident occurred between Wine and appellant. She drove Wine over toa house wher e appellant
was located, Wine went insi de and about twominutes later he came out and told her to drive away. He advised Evelyn that appella nt had jus t robbed him by gunpoint. She dropped Wine off at his house and then abou t fo ur or f ive hours later he showed up at her house upset. She test ified that he “was very upset that [appellant] had, you know, just kind of rolled into town and, you know, had just pick ed h im to mess w ith.” She furthe r stated thatWine “didn’t know w hat to do,” or “what he w as going to do.” Later th at evenin g, while she and Wine were w

atching T.V., appellant came to h er house and w hile holding a gun attempted to kick in her door. She saw Wine the next day around ten in th e morning and, while drivin g Wine’ car, they w ent onto Huff Road. Wine got out, and s he lef t to ge t something to eat. She further testified that w hen she left Wine, she observed him re trieve
a gun from underneath the seat. As s he was drivin g, Evel yn saw appell ant standing i n the driveway of the house wher

e Wine had been robbed. Shealso saw a pickup occu pied by Paul Brown and N athan driveby. By the time she re turned, the poli ce h ad the are a blocked off. She later saw Wine at his house and he told her he needed to get out of town. They, then, left for Amarill o and stayed t here for about a day and a half before retur ning12

to Pampa. Later, Wine was arr ested and Evel yn w ent to the p olice stati on to give a statement. Her

statement

consisted pr imarily

of representation s made to her by Wine as opposed to her personal knowledg e. Evely n also stated w ithout objecti on, that appellant
was a Crip and Wine was a B lood. So too did she tes tify that from the location w here she
saw appellant standi ng and where she dropped Wine off, it would hav e to have been appellant w ho shot Tracy

. McNeal testified that 1) on April 3, 2 00 3, he live d on Huff Road wi th his girlfriend, Michelle, 2) some persons wore re d for Bloods and some wor e blue for Cri ps but no one
was really

affiliated with either gang, 3) drugs were sold in the H ood, 4) on the day of the shooti ng, he was standing in the driveway of Miss Hattie’s al ong wit h Kwame, Wine and Michael, 5) appellant and Nathan were in the yar d of 1052 Huff along w ith sever al girl s, 6) when the shooting began, he (McNeal) was n e xt to the smal l blue car t hat was par ked behind the black Ni ssan, 7) he first s aw appellant in the street

with a g un, 8) of the group with McNeal, onl y Wine had a gun, 9) W ine wa s in the field next door to Miss Hattie’s house and 10) Wine pulled his gun ou t and started shooting bac k as he wal ked from the field to the front y

ard of Miss H attie’s. Michele testified that 1) she was up the street at 101 6 Huf f when the shooting started, 2) she saw

appellant walking i n the street w ith a gun, 3) once the shooting started, she grabbed her daughter and ca rried her i nto the house, 4) she then came back out and
saw Wine shooting on the other si de of Miss Hatt ie’s house, 5) she saw no one else w ith
a gun, 6) shesaw appell antrunning so uth and 7) w hen Wine was shooting, he was doing so in fr ont of th e carsparke d in th e driv eway of Mis s Hatt ie’s house, not beh ind the m.13

Reggie testified that he had lived i n the Hood most of his life, and on the day

of the shooting he resided at 1040 Huff. On that same day , he was s tanding in t he yard and s aw appellant

walking towards Wine and yelling at hi m an d calling him names that were derogatory to the Bloodsgang. He also saw appellant with a gun in his hand and he saw Wine yelling back and wa ving hi s hands wi thout a gun. Wine “wasn’t too far from the

. . . car.” Tracy w

as on the other s ide of the car getti ng groceries out. Reggie only h eard two shots and ran into thehouse. He then h eard someone yel l that Tracy had been shot and
saw W ine in th e yard shoo ting. On cross- examination, Reggie s tated that even though he
wore red he was not a member of a gang. Furthermo re, just because some people wore colors of particular gangs did not make the m gang members. Steve Powers w ith the Amarillo Police Department testified as an expert on gangs. Based on the information he r eceived about the incident and appellant’s ta ttoos and placement

of those tattoos he , in his opinion, beli eved appellan t to be a member of the Crips gang. Wine then testified that he had not know n appellant for mor e than t wo and half months prior

to the shooting . He sold dr ugs to both g angs, the Blo ods and the Cri ps and had that reputation in the Hood. According to Wine, Brandon Young brought appellant

to Pampa. On the night

before the shooting, app ellant robbed Wine by gun point of his drugs and mon ey. Th e gun used was a re volve r, the same one marked as State’s ex hibit 12. After that incident, Wine contacted a person about buy ing a gun, and ultimately purchased
a “Tech.” On the day of the sh ooting, Wine had gone to 1040 Hu ff and hid the gun behin d
some bushes. He al so saw appel lant wit h others incl uding Nathan at 10 52 H uff , Wine spoke to a person named Bo bby Dale D orsey, and told Dorsey about the robbery

the night14

before. Dorsey left Wine and went to talk with appellant at 1052 Huf f. W hile Dorsey spoke with appel lant, Wine leaned against the black Niss an parked in M iss Hattie ’s driveway. Sudd enly, according to Wine, appellant came out of the hous e at 1052 Huff and said, “‘[t]hese ol ’ ass nig gers can’ t take care of thei r own - - they ow n b usiness and sent somebody

down here.’” Appellant continued to walk back and fort h in t he front yard and the street w hile yel ling about how Wine sent someone down the street to “take care of [his] bus iness .” During this time, Paul Brown dr ove up and star

ted talking to appellant i n the yard. Appellant then fired a shot in Wine’s direction and Wine ran into Mi ss Hattie’ s house. According to Wine, he returned to the yard and grabbe d his gun from McNeal, w ho had taken the gun out of the bush es. W ine then went to a tre e in the yard w here he started firing back at appellant. Tracy was behind him when he beg an firing. A llegedly , McNeal also had a gun, but it

jammed when he tried to fir e it. Then, accor

ding to Wine, appellant
ran into a house, and Wine c ontinued to shoot at th e house before lea ving. The only persons Wine allegedly knew to have fired shots wer e himself and appell ant. He did not know o f Pa ul Bro wn or Na than firi ng an y. On cross-ex

amination, defense couns el impeached Wine with a pr ior statement he had given the police. Therein, he stated tha t “‘he, Kwame and J-Rock ran in to Mis s Hattie’s house and got s ome guns” and that “Kwa me and J-Rock s tarted shooting back at W illiams, Slim and Brown.’ ” Howev er, his tr ial testimony

was that ap pellant

shot first and that he saw Paul Brow n with a g un but did not see him shooting. The State rested. Appellant

called Del ores Spurri er to testify on hi s behalf. Spurri er owned a business in Pampa, and betwee n April 3 rd and April 22 nd , she had “a storm-related incident at [her] business.” According to Spurrier , part of her roof had been blown off. The i nference was15

thatthe crime scene had not only been u nprotected but had a lso been subject to a viol ent storm. The defense th en rested and the jury convicted appellant of involuntary manslaughter. Issues One and Two - Suf

ficiency of the Evidence Appellant

contends that “ [n]o rational jury coul d have found beyond a r easonable doubtthat a bullet fired from [his] gun caused the death of Tracy William s.” This is so according to appellant because the forensic examination of thefirearms ev idence by the State’s exp ert

did not i dent ify

appellant as th e one who fired the fatal shot. Fu rthermore, according to appellant, t he prosecution tendered no evi dence that the weapon s fired by Wine and others could be excluded as having fired the fatal bull et. And, the “ev idence as to the location w here e mpt y cartridge cases or bullet fragments were foun d is unreliable because the evidenc e shows that other personswere firi ng weaponsand that the crime
sc ene wa s compromised beforeand after Officer Morris, the fir st responder, arrived. ” Appellant

further contends that the “crime scen e had been unprotecte d for nineteen days when a brass bull etjacket was found . . . and later identified as being fired f rom appellant’s .357 pistol.”We disagree. Standard o f Review The standards by which we review claims of l egal and factual suf ficiency are well established. We refer the parties to Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979), Zunig a v. State , 144 S.W.3d 477 (Tex. Crim. Ap p. 2004), Zuliani v. State , 97 S.W .3d 589 (Tex. Crim

. App. 2003), and King v. State , 29 S .W .3d 5 56 (T ex. Crim. App. 2000)

for an explanati on of them. Furthermor e, manslaughter

requires proof thatthe d efe nda nt ac ted r eckl essl y, thatis, that he consciously disregar ded a substantial16

risk of which he w

as aware. See T EX
. P EN
. C ODE A NN . §§6.03(c),19. 04(a) (Vern on Supp. 2004-05). In the case at bar , the evidence shows that 1) the bullet that killed Tracy passed through the blac k Nissan whe re she was st anding f irst, 2) the casing or jacketin g of the bullet separated from the bullet and exited the vehicle leaving two e xit holes in the back passenger

side window, 3) a casing fir ed by a .357 r evolver was found in t he ground beside where the car

was parked, 4) the dir

ection from which t he bullet had been fir ed was from the south to the no rth or from left to right, 5) appellant had been seen in possessi on of a .357 revol ver duri ng the shootin g and wasshooting from the street towards the yard at1040 Huff, and in the di rection of Tracy , 6) appellant’ s print was found on the .357 revolver found near the scene a nd which had fired the casi ng that was fo und on the ground, 7) Wine was firing at appellant from i n frontof the cars and not behind the car s or towardsthe cars, 8) w hen Wine was firing Tracy was behind him, i.e. Wine was firing away from Tracy, 9)

witness es observed only appell ant and W in e with g uns, 10) Wine possessed a Tech 9 when s hooting, and 11) after Wine began shooting appellant ran away from 1040 Huff

in a southerly direction which would re sult in Wine shooting in the opposite direction of where the vehicles were par ked and wher

e Tracy was standing. Thus, we find the evidence w

as leg ally suffici ent to show that the projec tile that struck Tracy was fired by appellant

. In regard to the claim of factu al sufficie ncy, th e evidence w as not wit hout contradicti on. That evidenceconsisted of 1) others posse ssing guns which were purport edly fired and included a shotgun and a nother 9 mm gun, 2) the bullet f ound in Tracy’s body

could not be deter mined as coming from either of the g uns used by appel lant17

and Wine, 3) the crime scene was chaotic with sev eral personspassing thr ough it, 4)

the casing found near the area wher e the black car was parke d was found 19 day s later after the incident, and 5) no one saw appellant shoot Tracy . Y et, we cannot say that these circumstances

and the other

evidence of record render ed the verdi ct clearly

erroneous or manifestly unjust. They created issues of fact for the jury to decide. Therefore, the verdict does not lack fact ually suffici ent support. Issue Three - Gang Testimony In his third issue, appell antcontends that the trial court erred in admitting evidence of gang-rel ated activi ty as a moti ve for the shooting because there w as no evidence that appellant

or the vi ctim wer

e gang affiliated or that the sh ooting was a gang- related cri me. We f ind that he waived the i ssue. The same evidence regardin g gang a ffiliation by appellant had been solici ted and admitted withou t objection elsewher e in the tria l. Because i t was pre viously admitted without ob jection , any err

or arising from its re-i ntroduction l ater in the tr ial was cured. Hudson v. State , 675 S.W .2d 507, 511 (Tex. Cr im. App. 1984 ) (holding that error in the admission of evidence is cure d when the same evidenc e comes in elsewhere w ithout objection). Accordingl y, we affirm the judgment of the trial cour t.

Per Curiam Do not publish

.