Affirmed and Opinion Filed February 3, 2015 

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In The 

## Court of Appeals Fifth District of Texas at Dallas

No. 05-13-00478-CR No. 05-13-00479-CR VALENTIN JUNIOR HERNANDEZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Crimin al District Court No. 1 Dallas County, Texas Trial Court Cause Nos. F-1261625-H & F-1261626-H 

### MEMORANDUM OPINION Before Justices Bridges, Francis, and Myers Opinion by Justice Bridges Appellant Valentin Hernandez was charged in two separate causes with aggravated robbery with a deadly weapon. Appellant plea ded not guilty, and the jury found him guilty as charged. In cause no. F12-61625, th e jury assessed punishment at twenty years imprisonment. In cause no. F12-61626, the jury assessed punishment at fifteen years imprisonment. The trial court ordered that the sentences run concurrently. In one issue on appeal, appellant contends the trial court erred by admitting testimony into ev idence during the punishment phase regarding information on appellant’s gang cards. Because all dispositive issues are settled in law, we issue this memorandum opinion. T EX
. R. A PP
. P. 47.2(a), 47.4. We affirm the judgments of the trial

court.–2– I. FACTUAL AND PROCEDURAL BACKGROUND On October 21, 2012, at approxima tely 10:30 p.m., Gloria Cast aneda, her boyfriend Evar Cruz, and two of Gloria’s daughters were in Cast aneda’s vehicle, parked in a parking space in front of the apartment complex wh ere Cruz lived. Cruz got out of the vehicle and was standing on the driver’s side, talking to Castaneda throug h the window. Castaneda’s daughters, ages eight and thirteen, were asleep in the backseat. Wh ile Cruz and Castaneda talked, a white Mustang with a black front quarter panel pulled in behind Castaneda’s vehicle, blocking her exit. Two men got out of the Mustang, and one went to each side of Castaneda’s vehi cle. One of the men threatened to shoot Cruz if he ran, but Cruz ra n for help anyway. The other man put a tire iron next to Castaneda’s window and told her to get out of the vehicle. The men told Castaneda to give them everything she had, including her walle t and purse. Castaneda told them to take everything but not to hurt her ch ildren. The men took her neckla ce, purse, and the stereo from the car. The purse contained $850 in cash, includi ng a two dollar bill, and Cruz’s I.D. The two men left in the Mustang when Cruz re turned with some of his friends. Castaneda called the police, who put a descri ption of the Mustang on the radio. Soon thereafter, the Mustang was stopped; appellant and his brother, Pedro Hernandez, were inside. Both men were taken to police headquarters a nd interviewed. Meanwhile, the police inventoried the Mustang and found most of the stolen property and a tire iron in the back seat. Appellant gave a recorded statement to the police ad mitting his participati on in the robbery. Appellant was charged by indict ment with the offense of aggravated robbery with a deadly weapon in each case. Appellant pleaded not guilty to the charges. A trial was held before a jury, and the jury found appe llant guilty of the offenses. In cause no. F12-61625, the jury assessed punishment at twenty years imprison ment. In cause no. F12-61626, the jury assessed–3– punishment at fifteen years imprisonment. Th e trial court ordered th at the sentences run concurrently. Appellant now files this appeal. II. STANDARD OF REVIEW AND APPLICABLE LAW In one issue on appeal, appellant contends the trial court erred by admitting testimony into evidence during the punishment phase regard ing information on appellant’s gang cards. We review a trial court’s ruling on the admission of evidence under an abuse-of-discretion standard of review. See Davis v. State , 329 S.W.3d 798, 803 (Tex. Crim . App. 2010). Under that standard, a trial court’s ruling will only be deemed an abuse of disc retion if it is so clearly wrong as to lie outside the zone of reasonable disagreement. See Walters v. State , 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). The trial court’s ruling will be upheld if the trial court’s decision is “reasonably supported by the record and is correct under any theory of law applicable to the
case.” Carrasco v. State , 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). Appellant argues that testimony regarding th e content of appellant’s gang cards should not have been admitted under the best evidence ru le. The best evidence rule provides: “[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required except as otherwise provided in these rules or by law.” T EX
. R. E VID
. 1002; see also Englund v. State , 946 S.W.2d 64, 67–68 (Tex. Crim . App. 1997). “The best evidence rule rests on the fact that a document is a more reliable, complete, and accurate source of information as to its contents an d meaning than anyone’s description.” Overton v. State , 490 S.W.2d 556, 559 (Tex. Crim. App. 1973); see Ali v. State , 26 S.W.3d 82, 88 (Tex. App.—Waco 2000, no pet.) (“Generally speaking, the only comp etent evidence to prove the contents of a document is the document itself.”). However, the best evidence rule does not apply when the item in question is not admitted into evidence to prove its contents. See Sharp v. State , 707 S.W.2d 611, 618 (Tex. Crim. App. 1986). Further, th e best evidence rule does not apply when–4– the document and its contents are only collater ally related to the issues in the case. See Ali , 26 S.W.3d at 88. III. DISCUSSION In his sole issue, appellant contends the tr ial court erred by admitting the testimony of Carrollton police detective Cory Cook into ev idence during the punishment phase regarding information on appellant’s gang cards. In response , the State contends appe llant did not preserve error for appellate review, the be st evidence rule was not a proper objection in this case, and error, if any, was harmless. A. Evidence At Trial The State offered the testimony of Carrollt on police detective Cory Cook as character evidence regarding appellant’s gang affiliation. Cook testified that he has held numerous positions with the department, including gang in telligence. Cook stated that he has known appellant since appellant was a child. Cook’s most recent contact with appellant took place a year or two earlier, du ring an investigation of aggravated assault of a gang member. Cook testified that the complainant in that investig ation claimed that a rival gang member assaulted him, and Cook interviewed appellant regarding that offense. Cook testified that appellant never directly told Cook that he was a member of a ga ng. Cook then testified, without objection, that according to the police department’s gang data ba se, appellant claimed to be a member of the HHK gang on numerous occasions. Cook described the territorial nature of the HHK gang, and described their primary activities as robbery, as sault, theft, burglary, and drug possession and use. Cook explained that the HHK gang also uses the name Seven Leaf Soldiers, and stated that appellant has a tattoo indicating he is affilia ted with the Seven Leaf Soldiers gang. Cook testified that the gang unit of the poli ce department kept cards, similar to an intelligence roster, detailing the cont acts police had with certain indi viduals. Cook testified they–5– had several cards for appellant, th at he had reviewed appellant’s cards before coming to testify, and was familiar with the types of contacts a ppellant had with the Carrollton police. The prosecuting attorney then asked, “[b]ased on his gang card, what types of contacts has he had with the gang unit?” Defense counsel objected, st ating “[t]he best evid ence is the gang card itself and if the gang card is here.” Defense couns el also informed the trial court that he had not seen the cards; however, defense counsel did not ask to see the cards, and did not ask that they be produced. The trial court overruled defense counsel ’s objection. Cook then testified that based on his review of the gang cards, the Carrollton po lice gang unit had contact with appellant for incidents of fighting. He also stated there we re incidents when appellant was contacted by officers and proudly proclaimed he was a member of HHK. The State offered testimony from Deputy Margaret Brown with the Dallas County Sheriff’s Department, who identified the fingerp rints on various certified copies of prior judgments and certified jail cards as being appella nt’s fingerprints. The State also offered testimony of Rubin Morin, probation officer with Dallas County Adult Probation, who testified that appellant was initially placed on proba tion on March 31, 2011, for robbery and evading arrest. Morin testified that in November, 2011, appellant was placed on another probation, seven years of deferred adjudication, for aggravated assa ult. Morin further testified that appellant has failed to comply with th e terms of his probation. Appellant testified in his own defense, stating he has never been convicted of a felony as an adult. On cross-examination, appellant deni ed being a gang member or telling the police that he was a member of a gang. However, he admitted that he started using marijuana at 11 years of age, and that he started having contact with the court system around 12 years of age. He admitted being charged with making a terroristic threat when he was 12 years old, and also admitted committing juvenile burglary of a habitation and juvenile aggravated assault. He–6– admitted being expelled from Perry Middle School for gang activity, but denied being involved in gang activity. He admitted having a tattoo on his hand that says Seven Leaf Soldier but testified he got the tattoo because his friends pre ssured him to get it, not because he was a gang member. Appellant admitted that in 2010, he was charged with evading arrest for running into a car and striking other cars before jumping out a nd fleeing. However, he denied yelling that he was a member of the How High Krew (HHK) when getting out of his car. He admitted that he and his ex-girlfriend were involv ed in a robbery around the same time. Appellant admitted that while he was on probation for robbery and evading arrest, he also pled guilty to aggravated assault with a deadly weapon; however, appellant st ated that he did not commit this offense. And appellant testified that he did not remember what happened the night that he allegedly committed the aggravated robbery described in this case, and did not remember giving a statement to the police admitting he was involved in the offense. B. Applicability Of Best Evidence Rule Appellant complains that th e whole purpose of Cook’s test imony was to show the jury that appellant was a gang member and a menace to society. Appellant argues that because Cook’s assertion that appellant wa s a gang member was based strictly on the gang cards, it is of great importance to know whether Cook’s testim ony regarding the content of the cards was accurate. Therefore, according to appellant, Cook’s testimony regarding the content of the gang cards should not have been admitted under the best evidence rule. See T EX
. R. E VID . 1002. Cook’s testimony clearly demonstrated that he had known appellant and his family since appellant was a child, and his knowledge of appellant ’s gang affiliation was not based strictly on the Carrollton police department’s gang cards. Furthermore, Cook was asked about the gang cards kept by the Carrollton police department gang unit after he had al ready testified, without objection, that his research in the department’s gang data base and contacts with appellant–7– showed that appellant claimed to be a member of the HHK gang. Cook then testified, again without objection, that the department had se veral gang cards on appellant. The prosecuting attorney did not ask Cook to testify as to the ex act content of appellant’s gang cards. Instead, Cook was asked, “[b]ased on his gang card, what t ypes of contacts has he had with the gang unit?” The aim was not to prove the contents of appellant’s gang cards but to provide background relating to the ascertainment of appellant’s gang affiliation. See Overton , 490 S.W.2d at 559 (“It should be stresse d that the [best evidence] rule applies only where the purpose of the offered evidence is to prove the contents of the document.”). It is evident that neither party considered the specific content of the gang cards to be important in this case because the State did not attempt to admit the gang cards into evidence, and defense counsel did not ask to see the cards or request th at they be produced. We conclude the best evidence rule was not applicable, and the tria l court did not abuse its discretion by admitting Cook’s testimony regardi ng the types of contacts appellant had with the Carrollton police depa rtment’s gang unit. See Ali , 26 S.W.3d at 88. We overrule appellant’s sole issue. IV. CONCLUSION Having overruled appellant’s sole issue, we affirm the trial court’s judgments.

Do Not Publish T EX
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. P. 47 130478F.U05 /David L. Bridges/ DAVID L. BRIDGES JUSTICE–8– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT

VALENTIN JUNIOR HERNANDEZ, Appellant
No. 05-13-00479-CR V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 1, Dallas County, Texas Trial Court Cause No. F-1261626-H. Opinion delivered by Justice Bridges. Justices Francis and Myers participating.

Based on the Court’s opinion of this da te, the judgment of the trial court is AFFIRMED

. Judgment entered February 3, 2015.–9– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT

VALENTIN JUNIOR HERNANDEZ, Appellant No. 05-13-00478-CR V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 1, Dallas County, Texas Trial Court Cause No. F-1261625-H. Opinion delivered by Justice Bridges. Justices Francis and Myers participating.
Based on the Court’s opinion of this da te, the judgment of the trial court is AFFIRMED

. Judgment entered February 3, 2015.