Oral argument waived
PD

- 0964

- 15
I N THE T EXAS C OURT OF C RIMINAL A PPEALS

_________________________________________________ 

## O CZAVEONE 

## J ACKSON A PPELLANT

vs. 

## T HE 

## S TATE OF 

## T EXAS A PPELLEE

_____________________________ ____________________ F ROM THE F IFTH C OURT OF A PPEALS C AUSE No. 05

- 14

- 00985

- CR A PPEAL FROM C RIMINAL D ISTRICT C OURT N O
. 6 OF D ALLAS C OUNTY , T EXAS , C AUSE N O
. F12

- 60601

- X

____________________________________ _____________ 

## A PPELLANT 

## ’ S 

## P ETITION FOR 

## D ISCRETIONARY 

## R EVIEW

_________________________________________________
B RUCE A NTON State Bar No. 01274700 ba@sualaw.com
B RETT O RDIWAY State Bar No. 24079086 bordiway@sualaw.com S ORRELS , U DASHEN & A NTON 2311 Cedar Springs, Suite 250 Dallas, Texas 75201 214

- 468

- 8100 (office) 214

- 468

- 8104 (fax) Counsel for Appellant PD-0964-15 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 8/25/2015 4:57:47 PM Accepted 8/28/2015 11:22:43 AM

ABEL ACOSTA CLERK2 Ground for Review Whether the trial court abused its discretion in permitting at the punishment phase of trial the introd uction of evidence that Jackson was a member of a violent street gang.3 Table of Contents Ground for Review

................................ ................................ ...................... 2 Table of Contents

................................ ................................ ........................ 3 Index of Authori ties

................................ ................................ .................... 4 Identity of Parties and Counsel

................................ ................................ . 5 Statement Regarding Oral Argument

................................ ....................... 6 Statement of the Case and Procedural History

................................ ......... 7 Ground f or Review

................................ ................................ .................... 10 The trial court abused its discretion in permitting at the punishment phase of trial the introduction of evidence that Jackson was a member of a violent street gang.

................................ ................................ ......... 10 I. The trial court’s error

................................ ................................ . 10 II. The court of appeals’s errors

................................ ...................... 12 III. The court of appeals placed too high a burden on counsel to adequately preserve error

................................ ................................ . 13 IV. Gang evide nce is only admissible if a connection is proven

. 15 V. The trial court’s error affected Jackson’s substantial rights

... 17 VI. Conclusion

................................ ................................ ............... 20 Prayer

................................ ................................ ................................ ........ 21 Certificate of Service

................................ ................................ ................. 22 Certificate of Compliance

................................ ................................ ......... 224 Index of Authorities
Cases Acevedo v. State, 255 S.W.3d 162, 170 (Tex. App.

— San A ntonio 2008, pet. ref’d)

................................ ................................ ................................ 20 Benoit v. State , 87 S.W.3d 668, 670 (Tex. App.

— San Antonio 2002, pet. ref’d)

................................ ................................ ................................ ....... 20 Casey v. State , 215 S.W.3d 870, 879 (Tex. Crim. App. 2007)

.................. 17 Dawson v. Delaware , 503 U.S. 159 (1992)

................................ ............... 16 Ford v. State , 73 S.W.3d 923, 925 (Tex. Crim. App. 2002)

..................... 18 Fuller v. State , 829 S.W.2d 191, 197

– 98 (Tex. Crim. App. 1992)

.... 12, 15, 16 Jackson v. State , No. 05

- 14

- 00985

- CR, 2015 WL 3899573 (Tex. App.

— Dallas 2015)

................................ ................................ ........... 9, 13, 15, 19 King v. State , 953 S.W.2d 266, 271 (Tex. Cr im. App. 1997)

................... 18 Kotteakos v. U.S ., 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)

................................ ................................ ................................ ................ 18 Lankston v. State , 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)

............ 14 McCarthy v. State , 65 S.W.3d 47 (Tex. Crim. App. 2001)

....................... 19 Motilla v. State , 78 S.W.3d 352, 356 ( Tex. Crim. App. 2002)

................. 20 Sierra v. State , 266 S.W.3d 72, 77 (Tex. App.

— Houston [14th Dist.] 2008)

................................ ................................ ................................ ....... 16 United States v. Lemon , 723 F.2d 922, 941 (D.C. Cir. 1983)

.................. 15

Statutes
T EX
. P EN
. C ODE § 29.03(a)

................................ ................................ ........... 8

Rules
T EX
. R. A PP
. P . 33.1

................................ ................................ ................... 135 I dentity of Parties and Counsel For Appellant Oczaveon e Jackson : P A UL B RAUCHLE Trial counsel of record 4131 N. Central Expressway , Suite 680 Dallas, Texas 75204
B RUCE A NTON B RETT O RDIWAY Appellate counsel of record S ORRELS , U DASHEN & A NTON 2311 Cedar Springs , Suite 250 Dallas, Texas 75201 For Appellee the State of Texas:
T OMMY A DAMS J OSH H EALY Trial counsel of record D ALLAS C OUNTY D ISTRICT A TTORNEY ’ S O FFICE 133 N. Riverfront Blvd. Dallas, Texas 75207
M ICHAEL R. C ASILLAS Appellate counsel of record D ALLAS C OUNTY D ISTRICT A TTORNEY ’ S O FFICE

Trial court: C RIMINAL D ISTRICT C OURT N UMBER 6 OF D ALLAS C OUNTY , T EXAS T HE H ONORABLE J EANINE H OWARD PRESIDING6 S tatement Regarding Oral Argument Oral argument is waived.7 S tatement of the Case and Procedural History In the early morning hours of September 22, 2012, Oczaveone Jackson, Disheenee Woolen , and Sabrina Whittenburg were at a Red Roof Inn in Dallas in which Jackson rented a room. (RR4: 35, 37, 42,86). At approximately 2:30 a.m., they decided they “needed some money,” so Woolen called the complainant, whom she knew to be a pimp, and asked him to come pick her up from the hotel. (RR4: 43,86

- 88 , 101, 106). In fact, Woolen was “set [ting] [Jackson] up to rob [the complainant].” (RR4: 43

- 44). When the complainant arrived at the hotel, however , he refused to enter the room, instead insisting on waiting in his car. (RR4: 88, 90). Accordingly, Woolen went outside with her bags. (RR4: 44, 56, 90). As she did so, Jackson walked up to the side of the complainant ’ s car and demanded the complainant empty his pockets. (RR4: 45, 90

- 91). The complainant refused, and hit Jackson in his “shoulder, like ne ck area.” (RR4: 148). Jackson then shot the complainant in his arms, side, and groin. (RR4: 46, 91, 134). Despite this, the complainant was able to run to a nearby restaurant, where patrons called 9

- 1

- 1. (RR4:134

- 35). In the meantime, Woolen and Whitten burg fled. (RR4:48, 93).8 Police identified Jackson upon recovering a copy of his driver ’ s license from the hotel registration desk and viewing the hotel ’ s video surveillance recordings. (RR4: 35, 37, 44

- 45, 88, 157). The following day, Whittenbur g gave the police a statement, too. (RR4: 68). Jackson wassubsequently arrested and interrogated. After initially denying involvement in the offense, Jackson gave a video recorded statement admitting his role in the robbery. (SX107). The complainant then identified Jackson in a photo lineup. (RR4: 138

- 39). A grand jury indicted Jackson on November 5, 2012, for the aggravated robbery of James Boyd. (CR: 9); see T EX
. P EN
. C ODE § 29.03(a)

. Specifically, the indictment alleged that, on or about September 22, 2012, Jackson “intentionally and knowingly, while in the course ofcommitting theft of property and with intent to obtain or maintain control of said property, cause[d] bodily injury to [the] complainant byshooting [him] with a firearm.” (CR: 9). Accordingly, the indictment further alleged that Jackson “used and exhibited a deadly weapon.” (CR: 9). Jackson pleaded not guilty. (RR3: 15). His trial began on June 23, 2014, with voir dire , with the State ’ s case following on June 24 and 25

.9 (RR3 ; RR4; RR5 ). Immediately after the State rested, the defense did soas well, arguing that the State in its case in chief had not met its burden. (RR5: 31, 51

- 61). The jury was not persuade d and found Jackson guilty. (RR5: 68; CR: 267). Upon Jackson ’ s election to have the court set his punishment, it then sentenced him to life imprisonment. (RR 8: 26 ; CR: 245, 267 ). Jackson timely filed notice of appeal on June 30, 2014 . (CR: 266 ). Before th e Fifth Court of Appeals, he argued that the trial court abused its discretion in permitting at the punishment phase o f trial the introduction of evi dence that he was a member of a violent street gang. Jackson v. State , No. 05

- 14

- 00985

- CR, 2015 WL 3899573 (Tex. App.

— Dallas 2015) . The court overruled the ground, though, and affirmed Jackson ’ s conviction in an opinion filed June 25, 2015. Id. No motion for rehearing was filed.10 Ground for Review The trial court abused its discretion in permitting at the punishment phase of trial the introductionof evidence that Jackson was a member of a violent street gang.

! ! ! I. The trial court ’ s e rror At the punishment phase of Jackson ’ s trial, the State introduced evidence of other crimes Jackson had committed

. (RR5: 80

- 81; RR6: 27

- 29, 37 , 46, 100

- 01, 106

- 138). Additionally, Dallas Police Officer Greg Ceraso testified that, based on several tat toos on Jackson ’ s body, Jackson was a member of the Park Row Posse, a “Crip” gang located in the southern par t of Dallas. (RR6 : 76

- 96 )

. Ceraso described the gang as an over thirty

- year - old, predominantly African

- American gang which engaged in “anything fr om simple traffic violations to aggravated robberies to as high as murders, carjackings, [as well as] anything that will create revenue for them,” including “drug dealing

. ” (RR6: 79)

. As Ceraso began to further explain the “history about the gang, just som e background to it,” defense counsel unsuccessfully lodged a relevancy objection. (RR6: 79). The court granted defense counsel a running objection , and Ceraso then testified:11Back in 2008 we saw something that we had never seen before where

— our traditional gangs, your Bloods and your Crips, they would not like each other. They wouldn ’ t get along or anything like that. Back in 2008 we saw where Bloods and Crips were coming together for the sole purpose of money. That was their whole benefit, all they cared about was money. There would be groups from all over the city that would join these groups and there would be offsets. Wecall that gang a hybrid bang gang because you have your hybrid gang where you have your Bloods and your Crips that are coming together and they ’ re doing your robberies and everything like that, which is not traditional gangs. (RR6: 80 )

. O n cross - examination, Cera s o conceded that he did not know when Jack son acquired the tattoos, which were virtually the only evidence of any gang membe rship. (RR6: 97) . Cera s o further confirmed that he would in fact consider anyone with a tattoo who had committed a traffic offense to be a potential gang member. (RR6: 93). The S tate then used Jackson ’ s tenuous gang affiliation to ask for a life sentence.What do we know about when he has structure? The gang affiliations, the 187s, the Star of David, the Park Row Boys. Judge, these tattoos show you what he wants you to think about him, what he wants the people in TDC when he ’ s walking around with his shi rt off, they know not to mess with him, because he is a Crip, he ’ s a Park Row Boy, and he ’ s a savage. Not only do his tattoos show what this man is about, every crime that he has been committing since 12 years old show what Oczaveone Jackson is. (RR8: 2 4)

.12 II. The court of appeals ’ s error s On appeal to the Fifth Court of Appeals, Jackson argued that t he trial court abused its discretion in permitting at the punishment phase

o f trial the introduction of evi dence that Jackson was a member of a violent street gang. In Jackson ’ s case, t here is no evidence to suggest that he was a gang member before he was arrested. At best, the evidence showed that Jackson had gang

- related t attoos. Moreover, the evidence was insufficient to show that appellant intended to further the illegal activities of the gang. Accordingly, the gang membership testimony was of little relevance to sentencing, and the trial court abused its discretion in de termining otherwise. (Ap. Br. at 10

- 14) (citing Fuller v. State , 829 S.W.2d 191, 197

– 98 (Tex. Crim. App. 1992) ( gang membership evidence irrelevant

— and thus, inadmissible

— because it was “woefully insufficient” and “legally inadequate to connect Appellant with the gang in any meaningful way ” )). The court rejected Jackson ’ s appeal on every possible basis. First, th e court found Jackson ’ s issue unpreserved, because “[i]nstead of objecting to the State ’ s introduction or use of the gang

- related evidence, appellant merely objected to the relevancy of Cerasco ’ s contextual tes-13 timony describing an alliance formed in 2008 b etween the Crips and Bloods for the purposes of making money.” Jackson v. State , No. 05

- 14

- 00985

- CR, 2015 WL 3899573, *1 (Tex. App.

— Dallas 2015)

. “ Furthermore, ” the court noted “[e] vidence of membership in or affiliation with a
gan g would fall under the ty pe of ‘ bad acts ’ relevant to sentencing ” admissible under article 37.07 of the Code of Criminal Procedure. Id. at *2. Finally, the court reasoned that, in light of the admitted evidence of Jackson ’ s criminal history, he could not hav e been harmed by the co mplained

- of evidence. Id. The court was wrong on each basis.
III. The court of appeals placed too high a burden on counsel to adequately preserve errorRule 33.1(a)(1)(A) of the Texas Rules of Appellate Procedure provides: As a prerequisite to presenting a co mplaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specif icity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.
T EX
. R. A PP
. P . 33.1

. In order to satisfy Rule 33.1 ’ s requ irement, “all a party has to do ... is to let the trial judge know what he wants, wh y he14 thinks himself entitled to it, and to do so clearly enough for the judge to understand him.” Lankston v. State , 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) . This standard is “not to be implemented by splitting hairs in the appellate courts.” Id

. Only b y “split ting hairs ” could the court of appeals conclude that Jackson ’ s counsel failed to satisfy the fairly minimal requirements of Rule 33.1. His complaint to the trial court was that Jackson ’ s gang ’ s history was not relevant. (RR6: 79). A reasonable judg e in the trial judge ’ s position would have understood defense counsel ’ s argument t o concern the relevancy of acts Jackson was not involved in. And that ’ s just what Jackson complained of on appeal

— that the gang membership evidence was irrelevant (and thus, inadmissible) because there was “woefully in sufficient” and “legally inade quate ” evidence to connect Jackson to it “in any meaningful way.” (Ap. Br. at 12). The court of appeals , with its overly stri ct application of Rule 33.1, broke with the spirit of Lan kston and putting too great a burden on defense counsel. Accordingly, Jackson first respectfully requests this Court to grant thispetition so that it may reverse the court of appeals’s holding that Jackson’s complaint was not preserved for review.15 IV. Gang evidence is only admissible if a connection is proven As to the merits of Jackson ’ s complaint, the court of appeals rejected the ground merely because “[e]vidence of membership in or affiliation with a gang w ould fall under the type of ‘ bad acts ’ relevant to sentencing” admissible under article 37.07 of the Code of Criminal Procedure. Jackson , 2015 WL 3899573 at *1. But, as repeatedly noted, th is Court has held gang membership evidence to be nonetheless inadmissible where it was “woefully insufficient” and “legally inadequate to connect Appellant with the gang in any meaningful way.” Fuller , 829 S.W.2d at 197

– 98

. And here, the State failed to connect Jackson to any gang membership.
In Fuller , t h is Court applied the test articulated in United States
v. Lemon , 723 F.2d 922, 941 (D.C. Cir. 1983) , which s et forth that membership evidence may not be admitted at punishment unless the evidence is sufficient to establish that the defendant is a member of the group at issue, the group ’ s aims are illegal, and the defendant intended to further those illegal aims

. Fuller , 829 S.W.2d at 197

- 98. Because t he only evidence offered to show Fuller ’ s connection with a prison gang was the report of an inmate “whose inarticulate and rambling testimo-16 ny is almost impos sible to decipher,” this Court held that, a t best, the inmate ’ s testimony suggested that the defendant once mentioned the gang in conversation and “that he might have expected it to furnish him protection while in prison.” Id . a t 19 7

- 9 8. Accordingly, this Court held: [P]roof in the abstract of that organization ’ s beliefs and activities was ultimately irrelevant to any issue at the punishment phase of its trial. Without other evidence sufficient for a rational finding that Ap pellant was actually a memberof such organization or that he subscribed to its cannon of violence , the testimony in question did not increase the probability that he would be violent in the future. Id . (emphasis added). This Court also observed that “proof of an organization ’ s violent practices is not ultimately relevant to the sentencing of a specific individual without proof of that individual ’ s membership in the organization.” Id . at 196 n. 2 (discussing Dawson v. Delaware , 503 U.S. 159 (1992) ). In Sierra v. State , 266 S.W.3d 72, 77 (Tex. App.

— Houston [14th Dist.] 2008) , for example, the court found that the trial court did not err in admitting the testimony of a police officer during the punishment phase because the officer testifie d to his familiarity with the gang and his opinion that the defendant was a member. In Jackson ’ s case , t here was insufficient evidence to show that he was a gang member before he was arrested. In f act, the S tate presented17 no evidence that any of Jackson ’ s conduct was gang

- related. At best, the evidence showed that Jackson had gang

- related tattoos. Those tattoos,however, cannot be used to show that Jackson was a violent gang member, as the State ar gued. Moreover, the evidence was insufficient to show that appellant intended to further the illegal activities of the gang. Accordingly, the gang membership testimony was of little relevance to sentencing, and the trial court abused its discretion in dete rmining otherwise. See, e.g., Casey v. State , 215 S.W.3d 870, 879 (Tex. Crim. App. 2007) (A trial court ’ s ruli ng on the admissibility of evidence is reviewed for an abuse of discretion). The court of appeals was wrong to approve of the error simply because, if connected, gang evidence is admissible. Accordingly, on this basis, too, Jackson respectfully requests
th is Court to grant this petition, here so that it may reverse the court of appeals’s holding that the gang evidence was admissible.
V. The trial court ’ s error affected Jackson ’ s substantial rights Pursuant to Texas Rule of Appellate Procedure 44.2(b), non

con stitutional error that does not affect the substantial rights of the defendant must be disregarded. “A substantial right is affected when the error had a substantial and injurious effect or influence in determining18 the jury ’ s verdict.” King v. State , 953 S .W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. U.S ., 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) )

. When the admiss ion of evidence is at issue, a substantial right is affected when the error had a substantial and injurious effect or i nfluence in determining the jury ’ s verdict. Ford v. State , 73 S.W.3d 923, 925 (Tex. Crim. App. 2002)

. Or conversely, a substanti al right is not affected when the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight affect. Id. Neither party has a burden to prove or disprove harm; rather, it is the responsibility of the reviewing court, once it concludes there was error, to determine whether the error affected the judgment. Id. It must do so without the benefit of such aids as presumptions or allocated burdens of proof that expe dite fact

- finding at the trial. Id

. In Jackson ’ s case, the court of appeals held that his substantial rights were not affected because of the other, n on - disputed punishment evidence: [E]vidence was presented to the trial court of appellant ’ s extensive criminal history, beginning with burglary of a habitation at twelve years of age and including a carjacking appellant committed immediately after robbing and shooting19Boyd. Under these circumstances, we fail to see how appellant could have been harmed by the complained of evidence. Jackson , 2015 WL 3899573 at *2. In so doing, however, the court ignored that t he State specifically used Jackson ’ s tenuous ga ng affiliat ion to ask for a life sentence:What do we know about when he has structure? The gang affiliations, the 187s, the Star of David, the Park Row Boys. Judge, these tattoos show you what he wants you to think about him, what he wants the people in T DC when he ’ s walking around with his shirt off, they know not to mess with him, because he is a Crip, he ’ s a Park Row Boy, and he ’ s a savage. Not only do his tattoos show what this man is about, every crime that he has been committing since 12 years old sh ow what Oczaveone Jackson is. (RR8: 24). And the court then obliged. (RR8: 26). The State ’ s emphasis on Jackson ’ s supposed gang membership, then, quite clearly affected his substantial rights. See, e.g ., McCarthy v. State , 65 S.W.3d 47 ( Tex. Cr im

. App. 20 01) (e rror in admitting defendant ’ s statement to police detective in capital murder prosecution was not harmless; state relied on statement extensively, both during its case

- in

- chief and during its closing arguments, to establish defendant ’ s guilt of capit al murder either as a party or as a conspirator, and to paint defendant as an unrepentant liar and set out her cruel and greedy motive for killing victim, and there was reasonable likelihood that state ’ s use of statement materially af-20 fected jury ’ s delibera tions ) ; Benoit v. State , 87 S.W.3d 668, 670 (Tex. App.

— San Antonio 2002, pet. ref ’ d) (e rror in admitting inadmissible statement made by murder defendant to police officer was not harmless; State relied on statement extensively, both during its case

- in

- chie f and during its closing arguments, to establish defendant ’ s guilt of murder, and there was reasonable likelihood that State ’ s use of statement materiall y affected jury ’ s deliberations) . Only by ignoring the proper analysis did the court of appeals conclud e otherwise. See, e..g, Acevedo v. State, 255 S.W.3d 162, 170 (Tex. App.

— San Antonio 2008 , pet. ref ’ d ) (“ In accordance with Rule 44.2(b), our analysis of the harm associated with the erroneous admission of expert testimony considers everything in the

recor d, including the evidence admitted, the jury instructions, the State ’ s theory, defensive theories, closing arguments, and voir dire. ”) (citing Motilla v. State , 78 S.W.3d 352, 356 (Tex. Crim. App. 2002 ) ). Accordingly, on this basis, as well , the court of a ppeals was wrong to deny Jackson ’ s argument on appeal , and Jackson respectfully requests this Court to grant this petition so that it may hold as much.
VI. Conclusion21 The court of appeals reject ed Jackson ’ s appeal on three separate bases. Each one, though, wa s incorrect. This Court should thus grant this petition so that it may reverse the judgment s of the court of appeals and trial court and remand this case for a new trial. Prayer For the foregoing reasons , Jackson respectfully requests this Cour t to grant this petition for discretionary review. Respectfully submitted,

/s/ Bruce Anton B RUCE A NTON Bar Card No. 01274700 ba@sualaw.com
/s/ Brett Ordiway B RETT O RDIWAY State Bar No. 24079086 bordiway@sualaw.com S ORRELS , U DASHEN & A NTON 2311 Cedar Springs Road , Suite 250 Dallas, Texas 75201 (214)

- 468

- 8100 (office) (214)

- 468

- 8104 (fax) Counsel for Appellant22 Certificate of Service I, the undersigned, hereby certify that a true and correct copy of the foregoing Appellant ’ s Petition for Discretionary Review was electronically served to the Dallas County Dis trict Attorney ’ s Office and State Prosecuting Attorney on August 25, 2015

.
/s/ Bruce Anton Bruce Anton

Certificate of Compliance
Pursuant to T EX
. R. A PP
. P . 9.4(i)(3), undersigned counsel certifies that this bri ef complies with:
1. the type

- volume limitation of T EX
. R. A PP
. P. 9.4(i)(2)( D ) because this brief contain s 2,466 words , excluding the parts of the brief exempted by T EX
. R. A PP
. P. 9.4(i)(1).
2. the typeface requirements of T EX
. R. A PP
. P. 9.4(e) and the type style requirements of T EX
. R. A PP
. P . 9.4(e) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2011 in 14

- point Century.

/s/ Bruce Anton B RUCE A NTONAFFIRMED, and Opinion Filed June 25, 2015 . 

# S

In The 

### Court of Appeals Fifth District of Texas at Dallas
No. 05
- 14
- 00985
- CR OCZAVEONE JACKSON , Appellant V. THE STATE OF TEXAS , Appellee
On Appeal from the Criminal District Court No. 6 Dallas County, Texas Trial Court Cause No. F
- 1260601
- X MEMORANDUM OPINION Before Justices Francis, Lang

- Miers, and Whitehill Opinion by Justice Francis Oczaveone Jackson appeals his conviction for aggravated r obbery with a deadly weapon

. After the jury found him guilty of the charged offense, the trial court assessed punishment at life in prison. In a single point of error, Jackson contends the trial court abused its discretion by admitting certain evidence du ring punishment. We affirm the trial court’s judgment. On September 22, 2012, appellant robbed and shot the complainant, James Boyd , at a Red Roof Inn in Dallas

. Boyd identified appellant in court as the man who robbed and shot him. The two women who we re with appellant that night each testified he robbed and shot Boyd. In addition, the State offered a ppellant ’s video

- taped statement in which he admitted he robbed and shot Boyd . After hearing this and other evidence, the jury found appellant guilty.
D u ring punishment , the State introduced photograph s of appellant’s tattoos. Detective Greg Cerasco of the Dallas Police Department identified fourteen photographs of appellant and– 2

– noted details of the tattoos that indicated appellant was a member of a gang
. Cerasco also said several of appellant’s tattoos were consistent with tattoos belonging to members of the Park Row Posse, a subset of the Crips gang located in South Dallas. When Cerasco began detailing the history of an alliance between Crips and Bloods beginning in 2008, appellant’s trial counsel stated, “[w]e object to this testimony in that it’s not relevant to 2014.” Although t he trial court overruled the objection, appellant was granted a running objection to the testimony on the history . Cerasco went on to testify that appellant’s tattoos were also consistent with membership
in this hybrid gang of Crips and Bloods, known as the “Get Money Boys.” In his sole issue on appeal, appellant contends the trial court’s admission of gang

- related evidence was reversible error because it was not relevant and , therefore, was improperly considered by the trial court. To preserve a complaint for appellate review, the record must show the complaint was made to the trial court by a timely request, objection, or motion stating “the grounds for the ruling that the complaining party sought from the trial court with sufficien t specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the
context.” T EX
. R. A PP
. P. 33.1(a)(1). When an appellant does not timely object to the admission of evidence, he fails to preserve the issue f or review. Mays v. State , 318 S.W.3d 368, 391

− 92 (Tex. Crim. App. 2010). And the complaint raised on appeal must comport with the objection lodged at trial. See Guevara v. State , 97 S.W.3d 579, 583 (Tex. Crim. App. 2003) (appellant failed to preserve any error regarding the admission of evidence because objection at trial did not comport with complaint raised on appeal). After reviewing appellant’s sole issue, we conclude he waived the issue because he did not make a timely and specific objection to th e admission of the gang

- related evidence and, when he did object, his complaint below differs from the one raised in his appellate brief. See T EX
. R.– 3

– A PP
. P . 33.1(a)(1)(A); Reyna v. State , 168 S.W.3d 173, 177 (Tex. Crim. App. 2005 ). Instead of objecting to the State’s introduction or use of the gang

- related evidence , appellant merely objected to the relevancy of Cerasco’s contextual testimony describing an alliance formed in 2008 between the Crips and Bloods for the purposes of making money. Appellant di d not object when the State sought to admit photos of appellant’s tattoos or when Cerasco described the gang

related significance of appellant’s tattoos or the types of criminal activities consistent with those engaged in by gang members or associates. A p pellant’s relevancy objection addressed only the testimony about the 2008 alliance between two gangs; thus, the objection was insufficient to preserve error, if any. Under these circumstances, we conclude appellant has waived this issue. Furthermore, u nde r article 37.07 of the Texas Code of Criminal Procedure, a trial court has broad discretion to admit evidence the court deems relevant to sentencing, including evidence of prior crimes, reputation, character, or the circumstance of the offense. T EX
. C ODE C RIM
. P ROC

. A NN
. art. 37.07 § 3(a)(1) (West Supp. 2014 ); see Hayden v. State , 296 S.W.3d 549, 552 (Tex. Crim. App. 2009). Evidence of membership in or affiliation with a gang would fall under the type of “bad acts” relevant to sentencing, and article 37.0 7 allows the introduction of such evidence to show the defendant ’ s character. See Beasley v. State , 902 S.W.2d 452, 456 (Tex. Crim. App. 1995) . Finally, evidence was presented to the trial court of appellant’s extensive criminal history, beginning with burglary of a habitation at twelve years of age and including a carjacking appellant committed immediately after robbing and shooting Boyd. Und er these circumstances, we fail to see how appellant could have been harmed by the complained of evidence. See T EX
. R. A PP
. P. 44.2( b ). We overrule appellant’s sole issue.– 4

– We affirm the trial court’s judgment.

Do Not Publish T EX
. R. A PP
. P. 47.2 (b)
140985F.U05 /Molly Francis/ MOLLY FRANCIS JUSTICE– 5

– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT
OCZAVEONE JACKSON, Appellant
No. 05

- 14

- 00985

- CR V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 6, Dallas County, Texas Trial Court Cause No. F12

- 60601

- X. Opinion delivered by Justice Francis, Justices Lang

- Miers and Whitehill participating. Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. Judgment entered this 25th day of June, 2015.