NO. 01-13-00227-CR

IN THE COURT OF APPEALS

FOR THE FIRST DISTRICT OF TEXAS

JEREMY DION WASHINGTON

Appellant

v.

THE STATE OF TEXAS

Appellee

On Appeal from Cause Number 1862655

In the 8th County Criminal Court at Law of Harris County, Texas

BRIEF FOR APPELLANT

ORAL ARGUMENT REQUESTED ALEXANDER BUNIN

Public Defender

Harris County, Texas

MARK KRATOVIL

Assistant Public Defender

Texas Bar Number 24076098

1201 Franklin Street, 13th Floor

Houston, Texas 77002

Telephone: (713) 274-6728

Facsimile: (713) 437-4339

mark.kratovil@pdo.hctx.net

Counsel for Appellant

ACCEPTED

01-13-00227-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

7/13/2015 12:54:54 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 7/13/2015 12:54:54 PM CHRISTOPHER A. PRINE Clerk
ii

IDENTITY OF PARTIES AND COUNSEL

APPELLANT Jeremy Dion Washington

SPN 02368559

6030 Kennelwood

Houston, Texas 

DEFENSE COUNSEL AT TRIAL Brock White

801 Congress St., Suite 215

Houston, Texas 77002

PROSECUTOR AT TRIAL Allison Buess

Assistant District Attorney

Anateya Adeygia

Assistant District Attorney

Harris County, Texas

1201 Franklin Street

Houston, Texas 77002

PRESIDING JUDGE The Honorable Jay Karahan

8th County Criminal Court

1201 Franklin Street, 9th Floor

Houston, Texas 77002

APPELLANT’S COUNSEL Mark Kratovil

Assistant Public Defender

Harris County, Texas

1201 Franklin Street, 13th Floor

Houston, Texas 77002
iii

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL.................................................................................. ii

TABLE OF CONTENTS............................................................................................................ iii

INDEX OF AUTHORITIES ........................................................................................................ v

STATEMENT OF THE CASE ..................................................................................................... 1

ISSUES PRESENTED ................................................................................................................. 4

STATEMENT OF FACTS............................................................................................................ 4

SUMMARY OF THE ARGUMENT.............................................................................................. 9

ARGUMENT............................................................................................................................ 11

ISSUE ONE: Officer Sullivan’s inability to properly articulate the methodology 

that he relies on to identify members of street gangs rendered his expert 

testimony unreliable under Texas Rules of Evidence 702, and the trial court 

erred in permitting him to testify as an expert witness. ..................................... 11

A. Defense Counsel Preserved Error By Objecting To Officer Sullivan's Testimony, Requesting a Daubert Hearing, And Renewing the Objection At the Close 

Of the Hearing .......................................................................................................... 11

B. Under Texas Rules Of Evidence 702, An Expert Must Be Qualified To Testify 

On the Relevant Subject Matter.............................................................................. 12

C. Officer Sullivan Could Not Articulate the Methodology He Used To Identify 

Gang Members, And Explained That He Relied Almost Entirely On a Computer Program............................................................................................................ 13

D. The Appellant Suffered Harm As Sullivan's Unreliable Conclusions Invaded 

the Jury's Province As the Trier Of Fact ............................................................... 15

ISSUE TWO: The trial court erred in admitting State’s Exhibits 24, 25, and 26—

photos printed from the internet of various gang symbols—as these exhibits 

were not properly authenticated.................................................................................x
iv

A. Defense Counsel Preserved Error By Objecting When the State Sought To Enter the Exhibits Into Evidence ................................................................................ 16

B. Photographs Must Be Shown To Properly Represent the Object In Question 

By Any Witness Who Knows the Underlying Facts Portrayed In the Photos . 18

C. There Is Insufficient Evidence In the Record That State's Exhibits 24, 25, and 

26 Are a Correct Representation Of the Facts Portrayed.................................... 18

D. The Appellant Suffered Harm As the Introduction Of the Unauthenticated Images Allowed the Jury To Draw Unsubstantiated Connections Between the Exhibits And the Appellant's Alleged Gang Membership........................................ 20

PRAYER................................................................................................................................... 21

CERTIFICATE OF SERVICE.................................................................................................... 22

CERTIFICATE OF COMPLIANCE ........................................................................................... 23
v

INDEX OF AUTHORITIES

Cases

Campbell v. State, 382 S.W.3d 545 (Tex. App.—Austin 2012, no pet.) ........................... 18

Daubert v. Merrell Dow Pharm., 509 U.S. 579, 590 (1993)............................................. 12, 13

Everitt v. State, 407 S.W.3d 259 (Tex. Crim. App. 2013) .................................................. 17

Ford v. State, 305 S.W.3d 530 (Tex. Crim. App. 2009)...................................................... 17

Harris v. State, 133 S.W.3d 760 (Tex. App.—Texarkana 2004, pet. ref’d) ..................... 15

Hernandez v. State, No. 03-04-00356-CR, 2006 WL 191918, at *6 (Tex. App.—Austin 

Jan. 26, 2006, pet. ref’d) (not designated for publication)........................................... 19

Huffman v. State, 746 S.W.2d 212 (Tex. Crim. App. 1988)............................................... 18

King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000)........................................................ 11

Lankston v. State, 827 S.W.3d 907 (Tex. Crim. App. 1992).............................................. 17

Nenno v. State, 970 S.W.2d 549 (Tex. Crim. App. 1998)................................................... 14

Penry v. State, 903 S.W.3d 715 (Tex. Crim. App. 1995)..................................................... 13

Roise v. State, 7 S.W.3d 225 (Tex. App.—Austin 1999, pet. ref’d) .................................. 14

Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012)................................................... 18

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

Statutes & Rules

Tex. R. App. Proc. Rule 33.1 ........................................................................................ 12, 17

Tex. R. App. Proc. Rule 44.2 ........................................................................................ 15, 20
vi

Tex. R. Evid. Rule 702................................................................................................... 12, 13

Tex. R. Evid. Rule 705......................................................................................................... 14

Tex. R. Evid. Rule 901................................................................................................... 18, 19

Tex. Penal Code § 46.02 ..........................................................................................11, 15, 20

Tex. Penal Code § 71.01 ...................................................................................................... 20
1

STATEMENT OF THE CASE

The Harris County District Attorney’s Office charged Jeremy Washington

(“Appellant”) by information on November 16, 2012, with one count of unlawful carrying of a weapon. (C.R. at 3).1

Specifically, the Appellant was alleged to have been in 

possession of a handgun in a motor vehicle while the Appellant was a member of a 

criminal street gang. Id. 

Voir dire began on February 18, 2013, and a six-person jury was empanelled on 

that same day. (2 R.R. at 91-92). Following a two-day trial on guilt-innocence, the jury returned a guilty verdict. (4 R.R. at 84-86; C.R. at 57-59). The punishment phase 

began immediately after the verdict was rendered, and the trial court assessed the Appellant’s punishment at one year confinement in the Harris County Jail, with the sentence suspended and the Appellant placed on community supervision for a period of 

two years. (4 R.R. at 89-94; C.R. at 58-63). A timely Notice of Appeal was filed by the 

 

1 As will be explained in as much detail as possible, the record in this case is unusually dense and 

complicated for a misdemeanor trial. The record in the present case contains five volumes of the 

Reporter’s Record and one volume of the Clerk’s Record from the Appellant’s actual trial. Two versions of the Reporter’s Record from the Appellant’s trial were filed with the Court of Appeals. Citations to the Reporter’s Record in this brief refer to the version filed with the First Court of Appeals 

on July 14, 2014. The record also contains two volumes of Reporter’s Records from show cause 

hearings held on March 26, 2014, and April 16, 2014, before the First Court of Appeals. In addition, 

there was a lengthy series of show cause and abatement hearings held before the 10th Country Criminal Court at Law, which are included in the record. In an effort to be as clear as possible, any citations to the Reporter’s Record from the show cause and abatement hearings will explicitly state the 

date of the hearing to which the citation is referring. Unless otherwise noted, a citation to the Reporter’s Record or Clerk’s Record without further clarification can safely be assumed to refer to the 

record from the Appellant’s trial.
2

Appellant and certified by the trial court on February 21, 2013. (C.R. at 68, 70-71). A 

Motion for New Trial was not filed in the Appellant’s case.

The present case is one of nine cases where Sondra Humphrey served as the 

court reporter, which were all abated to determine whether a complete Reporter’s 

Record could be assembled. (Feb. 26, 2015, Abatement Hearing, R.R. at 4). On 

March 26, 2014, this Court convened for a hearing on the Court’s Order to File Reporter’s Record or Show Cause Hearing, which ordered Ms. Humphrey to file a Reporter’s Record with the Court of Appeals in the present case by March 24, 2014. 

(March 26, 2014, Show Cause Hearing, R.R. at 6-9). Ms. Humphrey did not appear at 

this hearing. (March 26, 2014, Show Cause Hearing, R.R. at 2-4). On April 16, 2014, 

this Court held a second Show Cause hearing, where Ms. Humphrey appeared with 

her attorney, Lott Brooks. At this hearing, Mr. Brooks represented to this Court that 

a Reporter’s Record would be filed within the next twenty-four hours. (April 16, 2014,

Show Cause Hearing, R.R. at 4). Ms. Humphrey testified before this Court and cited 

her need for an emergency medical procedure on March 31, 2014, as the reason for 

her non-appearance at the initial hearing. Id. at 8. This Court declined to enter an order of contempt against Ms. Humphrey at the close of the hearing. Id. at 15.

On April 24, 2014, the first in a series of abatement hearings was held before 

Judge Sherman Ross in the 10th County Criminal Court at Law per this Court’s 

Abatement Order. (April 24, 2014, Abatement Hearing, R.R. at 4). The majority of 

this hearing concerned the state of the record in two other misdemeanor cases in 
3

which the Appellant was not a party. Id. at 4-5. Ms. Humphrey cited numerous personal and medical issues as the reason for the delay in turning in the Reporter’s Record in these particular cases and assured the court that the records would be completed within the next two weeks. Id. at 8-13.

The next abatement hearing was held before Judge Ross on May 2, 2014. Ms. 

Humphrey informed the court that the record in the Appellant’s case would be filed 

on that day by 5:00 p.m. (May 2, 2014, Abatement Hearing, R.R. at 4). Although several hearings were held in the interim, the next substantive hearing impacting the Appellant’s case was not until June 30, 2014. In that hearing, Mr. Brooks informed the 

court that the record in the Appellant’s case had been completed. (June 30, 2014,

Abatement Hearing, R.R. at 6). However, in a follow-up abatement hearing on July 7, 

2014, the court was informed by the State that the record in the Appellant’s case was 

“missing the charge conference, closing arguments, verdict and punishment phase.” 

(July 7, 2014, Abatement Hearing, R.R. at 4-5).

It was not until February 17, 2015, that a complete record in the Appellant’s 

case was filed with this Court. On that day, the State and the Appellant filed a Joint 

Motion to Reinstate Appeal.2

 

2 A copy of this motion is not included in the record for the Appellant’s case. However, it may be 

viewed on the case information page for this case or at the following link: 

http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=9b280565-3cd7-4a43-a3c8-

f6731171c376&coa=coa01&DT=Motion&MediaID=be99fb57-6a10-4ae0-ba8a-235ba4c94b4b
4

Findings of Fact were entered by Judge Sherman Ross on February 27, 2015. 

(Supplemental C.R. at 5-11). In these findings, Judge Ross determined that the record 

in the present case “is currently acceptable for purposes of returning the case to the 

Court of Appeals active docket.” (Supplemental C.R. at 11). While the Reporter’s 

Record does contain a handful of obvious typographical errors during the testimony 

of witnesses, these problems do not appear to be so prevalent as to render the record 

unreliable or incomplete. 

On March 17, 2015, this Court reinstated the Appellant’s case onto its active 

docket. This appeal followed.

ISSUES PRESENTED

ISSUE ONE: Officer Sullivan’s inability to properly 

articulate the methodology that he relies on to identify 

members of street gangs rendered his expert testimony 

unreliable under Texas Rules of Evidence 702, and the trial 

court erred in permitting him to testify as an expert 

witness. 

ISSUE TWO: The trial court erred in admitting State’s Exhibits 24, 25, and 26—photos printed from the internet of 

various gang symbols—as these exhibits were not properly 

authenticated.

STATEMENT OF FACTS

 Officer Gordon Sullivan with the Houston Police Department was on patrol 

in the southeastern part of Houston on October 4, 2011, when he drove past the Appellant on Interstate 610. The car the Appellant was driving appeared to have an expired registration tag, which prompted Sullivan to conduct a traffic stop of the Appel-
5

lant. (2 R.R. at 117-118). Upon further inspection, Sullivan discovered that the Appellant’s registration had been expired for only a few days and the Appellant claimed that 

he was at that moment on his way to renew the car’s registration. (3 R.R. at 20). The 

traffic stop was routine at first, with Sullivan confirming the Appellant’s identification 

and that he did not have any warrants out for his arrest. But according to Sullivan, the 

Appellant was wearing all blue and had a blue bandana in the center console of his 

car. (2 R.R. at 119). 

Based on the Appellant’s clothing, Sullivan shifted the focus of the traffic stop 

into a different direction and bluntly asked the Appellant whether he was a gang 

member. The Appellant told Sullivan that he was a former member of the 52 Hoovers-Crips. At the request of Sullivan, the Appellant got out of his car and showed 

Sullivan several tattoos, which Sullivan believed reflected the Appellant’s affiliation 

with the 52 Hoovers-Crips. (2 R.R. at 119-121). Although Sullivan had been patrolling this particular area of Houston for about three years as a member of a crime reduction unit, this was the first time that Sullivan had encountered the Appellant. (3 

R.R. at 16-17). Indeed, an investigation of the Appellant’s background by Sullivan did 

not reveal that the Appellant had ever been arrested, charged, or convicted for a criminal offense. (3 R.R. at 27). Sullivan described the Appellant as “Very cooperative” 

and “chilled” during the entirety of the traffic stop. (2 R.R. at 120; 3 R.R. at 14). In 

Sullivan’s experience, members of street gangs are not typically cooperative with him 

in his capacity as a police officer. (3 R.R. at 22). Further, the Appellant showed Sulli-
6

van his work identification card, showing that the Appellant was employed as a security officer with MED Security University General. (3 R.R. at 22-23). A search of the 

Appellant’s vehicle found some marijuana seeds and stems, but no usable amount of 

marijuana was located. (3 R.R. at 13).

At this point, Sullivan decided to let the Appellant leave without arresting him 

or issuing a citation. However, Sullivan did document the traffic stop and entered information about the Appellant and his car into a program called “Gang Tracker.” And

just as the name would lead one to believe, Gang Tracker is a program used to identify and track gang members in Houston by documenting their interactions with law 

enforcement. (2 R.R. at 121-122, 154). Photographs of the Appellant, his car, and his 

tattoos were entered by Sullivan into Gang Tracker, along with the Appellant’s name 

and vital statistics. (2 R.R. at 122-125; 5 R.R. at 5-11 (State’s Exhibits 1-7)). Sullivan 

noted in the entry he created for the Appellant that he was a former gang member as 

opposed to an active one. (3 R.R. at 24).

After Sullivan’s traffic stop of the Appellant in early October of 2011, Officer 

Craig Ferzenni with the Houston Police Department’s Gang Division Crime Reduction Unit pulled the Appellant’s car over on April 8, 2012, at around 11 p.m.. (3 R.R. 

at 41, 45-49, 52). The reason for the traffic stop was that the Appellant had twice 

changed lanes without using a turn signal. (3 R.R. at 49-50, 54). As was the case with 

the traffic stop carried out by Officer Sullivan, this occurred in the southeastern area 

of Houston. (3 R.R. at 46).
7

Once the Appellant had pulled his car over, Ferzenni and his partner—Officer 

Robert Revus—split up during their approach to the car, with Ferzenni going to the 

driver’s side window and Revus walking to the passenger side. (3 R.R. at 44, 53-55, 

97). The Appellant was driving the car, while his brother—Jarvis Washington3—was 

sitting in the passenger seat. (3 R.R. at 60, 98). While Ferzenni was talking to the Appellant and asking for his driver’s license and insurance, Revus saw a pistol inside of 

the car told Ferzenni to get the Appellant out of the vehicle. (3 R.R. at 59-60, 98-99). 

The Appellant was not wearing a shirt during the traffic stop, which allowed Ferzenni

to see the same tattoos that Sullivan had documented several months earlier. (3 R.R. 

at 60-62, 84, 102). As was the case with Sullivan, Ferzenni and Revus described the 

Appellant as non-combative and cooperative during the traffic stop. (3 R.R. at 80, 

113). 

The Appellant was frisked by Ferzenni and separated from Jarvis Washington, 

who remained seated in the car. (3 R.R. at 100). A search of the Appellant’s vehicle 

by Revus turned up a pistol found near the passenger’s seat. (3 R.R. at 63, 65). The 

Appellant admitted ownership of the pistol and told Ferzenni that it was something 

he carried in his capacity as a commissioned security guard. (3 R.R. at 65-66, 81). 

Once the Appellant had been placed in the backseat of the police cruiser, Ferzenni 

 

3 The record variously refers to the Appellant’s brother as both Jyrus Washington and Jarvis Washington. Because the record indicates that he refers to himself as Jarvis during his testimony, this 

brief will do so as well. 
8

found that the Appellant had been documented as a former gang member in the Gang 

Tracker program. (3 R.R. at 79, 86, 104).

Sergeant Clint Ponder with the Houston Police Department—a ten year veteran of the department’s gang division—provided general background information at 

the Appellant’s trial about the 52 Hoovers-Crips. (3 R.R. at 132-134). According to 

Ponder, the Hoovers-Crips are a street gang involved in criminal activity. (3 R.R. at 

136-137). The colors blue and orange are commonly associated with this particular 

gang. (3 R.R. at 139-140). Ponder took several photographs of the Appellant’s tattoos 

as they appeared during the trial. (3 R.R. at 140-141). In Ponder’s opinion, these tattoos were indicative of membership in a Crips affiliated gang. (3 R.R. at 142-148).

Jarvis Washington—the Appellant’s twin brother—testified as a witness for the 

defense and confirmed that he was a passenger in the Appellant’s car on the night 

they were pulled over by Revus and Ferzenni. (3 R.R. at 173, 176-177). After the Appellant had gotten out of his car, Jarvis recalled hearing that the Appellant told 

Ferzenni that there was a gun in the car and that he had a license to carry it. No attempt was made to conceal the pistol from the officers. (3 R.R. at 177-179). From 

Jarvis’s understanding, the pistol was something that the Appellant used for his work 

as a security guard. (3 R.R. at 182). Jarvis was not arrested that night. (3 R.R. at 180).

The Appellant elected to testify at the trial and offered up his own version of 

events. Initially, the Appellant denied that he had switched lanes and that he had not 

committed the traffic infraction for which he was pulled over. (3 R.R. at 196). When 
9

the Appellant handed Ferzenni his driver’s license and insurance, he also provided the

officer with his license to carry the pistol and informed him that there was a gun in 

the car. (3 R.R. at 197). For the Appellant, the pistol was a tool that he used every day 

at his job. (3 R.R. at 198). 

In explaining the presence of the tattoos on his body, the Appellant expressed a 

desire to have them removed. The tattoos were originally placed on him eight years 

prior to trial when the Appellant was in the ninth grade at age fifteen. The Appellant 

decided to get the tattoos because he “was young and everybody was doing it.” (3 

R.R. at 204-205). He denied having any association with gang members of having engaged in any criminal activities in the five years prior to the trial, but did conceded 

that he was formerly a member of the 52 Hoovers-Crips. (3 R.R. at 205-206; 4 R.R. at 

7).

SUMMARY OF THE ARGUMENT

The State’s first witness at the guilt-innocence phase of trial was Officer Gordon Sullivan, who was certified as an expert witness on the issue of gang membership. 

But during the Daubert hearing to test Sullivan’s qualifications as an expert witness, 

Sullivan was unable to articulate the full methodology he relies upon to identify gang 

members, and explained that he relies on the Gang Tracker program to provide this 

methodology to him. Because the defense was essentially prevented from fully and 

fairly exploring Sullivan’s purported methodology, Sullivan was not properly qualified 

to testify as an expert witness.
10

During the testimony of Sergeant Clint Ponder, State’s Exhibits 24, 25, and 26 

were introduced into evidence over the objection of defense counsel. These three exhibits purport to be imagery commonly associated with the 52 Hoovers-Crips gang. 

Ponder demonstrated no personal knowledge of where this images came from, and 

the State offered no explanation as to the origin of them. As such, these three exhibits were not properly authenticated and the trial court committed error in admitting 

them into evidence.
11

ARGUMENT

ISSUE ONE: Officer Sullivan’s inability to properly 

articulate the methodology that he relies on to identify 

members of street gangs rendered his expert testimony 

unreliable under Texas Rules of Evidence 702, and the trial 

court erred in permitting him to testify as an expert 

witness. 

The State sought to elicit expert testimony from Officer Gordon Sullivan on 

the subject of criminal street gangs. Although courts have previously upheld the use 

of expert testimony to explain the membership, terminology, and symbols of gangs, 

King v. State, 29 S.W.3d 556, 560 (Tex. Crim. App. 2000), Sullivan did not demonstrate 

that his testimony was sufficiently reliable to properly offer expert testimony on the 

issue of gang membership. And to be clear, the Appellant concedes that since gang 

affiliation is an element of the offense of unlawful carrying of a weapon, this type of 

testimony would be relevant. See Tex. Penal Code § 46.02(a-1)(2)(c). But it is the reliability of Sullivan’s that the Appellant is now challenging. See Vela v. State, 209 S.W.3d 

128, 131 (Tex. Crim. App. 2006) (trial court must find that three conditions are met 

for an expert to testify: 1) qualification; 2) reliability; and 3) relevance).

A. Defense Counsel Preserved Error By Objecting To Officer Sullivan’s 

Testimony, Requesting a Daubert Hearing, And Renewing the Objection At the Close Of the Hearing

Early on in the direct examination by the State of Sullivan, defense counsel objected to the State’s line of questioning and stated to the trial court that “this witness 
12

has not been qualified as an expert.” (2 R.R. at 107-108). A Daubert4hearing followed, 

during which Sullivan’s qualifications as a gang expert were explored through crossexamination. (2 R.R. at 108-114). At the close of the hearing, defense counsel renewed his objection, stating that “I’d ask that this witness not be able to testify as any 

type of expert. I don’t believe he even qualifies as an expert under Daubert.” (2 R.R. at 

114-115). Defense counsel’s objection was subsequently overruled and Sullivan was 

permitted to testify as an expert on the issue of gang membership. However, the trial 

court did permit defense counsel to have a running objection to Sullivan’s testimony. 

(2 R.R. at 115).

Because defense counsel made a timely objection to the trial court, stated the 

grounds on which his objection was based, the trial court indicated awareness of the 

nature of defense counsel’s objection, and expressly ruled on defense counsel’s objection, any potential error has been preserved for appellate review. See Tex. R. App. 

Proc. 33.1(a).

B. Under Texas Rules Of Evidence 702, An Expert Must Be Qualified To 

Testify On the Relevant Subject Matter

Testimony by expert witnesses is governed by Texas Rules of Evidence 702. 

This rule permits a witness qualified by knowledge, skill, experience, training or education to testify on not only scientific subjects, but also on other specialized subjects 

that would assist the trier of fact in understanding or determining a fact issue. Tex. R. 

 

4

See Daubert v. Merrell Dow Pharm., 509 U.S. 579, 590 (1993). 
13

Evid. 702. The opinion offered by the expert must be more than “subjective belief or 

unsupported speculation,” but it does not need to reach the level of “known to a certainty” to be admissible. Daubert, 509 U.S. at 590.

There are two hurdles that Rule 702 requires an expert’s testimony to overcome: the proponent of the testimony must establish that the expert’s specialized 

knowledge will aid the trier of fact, and that the expert is qualified to testify on the 

subject. Tex. R. Evid. 702. The burden in this case thus fell on the State to demonstrate that Sullivan was qualified as an expert on the subject of gang membership. See 

Penry v. State, 903 S.W.3d 715, 762 (Tex. Crim. App. 1995).

C. Officer Sullivan Could Not Articulate the Methodology He Used To 

Identify Gang Members, And Explained That He Relied Almost Entirely 

On a Computer Program

In the course of the Daubert hearing, Sullivan explained that his qualifications as 

an expert in gang membership consisted of the following: 1) five years of experience 

with the Houston Police Department; 2) an eight hour training class that he was required to take every other year; 3) an unspecified amount of training he received in 

the police academy; and 4) interactions with three members of the 52 Hoovers-Crips 

over the past five years. (2 R.R. at 108-111). Sullivan also touched on the criteria that 

he relies on to identify gang members, explaining that there are eight factors that he 

looks for to identify someone as a member of a gang and that only two of these factors must be present to qualify someone as a gang member (2 R.R. at 112). Among 

these factors were “colors, tattoos, self-admission, being around other documented 
14

gang members, having a confidential and reliable witness.” Id. But Sullivan was unable 

to articulate the remaining factors, stating that “I got to have the tracker in front of 

me to see the rest of them.” Id.

Because Sullivan was contending that there was a particular methodology that 

he relied on to identify gang members, it was incumbent that the methodology be validated as a legitimate one. See Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App.

1998), overruled on other grounds, State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999). 

Put simply, because Sullivan could not explain all of the factors he relies on to identify 

a gang member, it was impossible to properly vet the methodology that underlies the 

gang member identification process that he used to classify the Appellant as a gang 

member. Since the “expertise must be measured against the particular opinion the 

expert is offering,” Roise v. State, 7 S.W.3d 225, 234 (Tex. App.—Austin 1999, pet. 

ref’d), the expert testimony of Sullivan must have been based on a reliable foundation. 

See also Tex. R. Evid. 705(c) (“An expert's opinion is inadmissible if the underlying 

facts or data do not provide a sufficient basis for the opinion.”).

Because Sullivan was unable to properly articulate the underlying data or facts 

that formed the basis of his testimony as an expert witness, the defense was in effect 

prevented from conducting a full voir dire of the basis of his testimony. Under Texas 

Rules of Evidence 705(b), the Appellant had a mandatory right to examine Sullivan 

about the underlying facts or data that inform his opinion. Sullivan’s inability to provide this underlying methodology denied the Appellant the opportunity to explore the 
15

basis of Sullivan’s opinion and rendered his expert testimony unreliable. See Harris v. 

State, 133 S.W.3d 760, 775 (Tex. App.—Texarkana 2004, pet. ref’d) (holding that the 

trial court abused its discretion by not allowing the defense to voir dire an expert witness regarding the underlying data or facts that formed the basis of the expert’s testimony). Thus, the trial court erred in allowing Sullivan to testify as an expert witness 

on the subject of gang membership when Sullivan could not provide the underlying 

facts, data, and methodology that crafted his opinion, rendering it unreliable.

D. The Appellant Suffered Harm As Sullivan’s Unreliable Conclusions Invaded the Jury’s Province As the Trier Of Fact

Because any error in allowing Sullivan to testify as an expert witness is nonconstitutional in nature, harm to the Appellant is assessed under Texas Rules of Appellate Procedure 44.2(b).

Membership in a gang is a critical element of the crime the Appellant was 

charged with. Tex. Penal Code § 46.02(a-1)(2)(c). Sullivan was the first member of 

law enforcement to take official action to label the Appellant as a member of a gang 

during the traffic stop which took place on October 4, 2011, approximately six 

months before the incident for which the Appellant was arrested. (2 R.R. at 117; 3 

R.R. at 43). And it was Sullivan who originally made the decision to enter the Appellant into the Houston Police Department’s Gang Tracker program, which the arresting officers would later rely on. (3 R.R. at 23, 79).
16

By allowing Sullivan to testify as an expert in gang membership, the trial court 

permitted Sullivan to opine on the significance of things such as the Appellant’s tattoos and the color of the Appellant’s car, which were the primary pieces of evidence 

the State relied on to prove up the element of gang membership in the criminal charge 

against the Appellant. (2 R.R. at 121; 3 R.R. at 9, 11). This testimony, based on Sullivan’s unreliable foundation of underlying data and facts for his expert opinion, 

crossed the line between assisting the jury and replacing the jury as the trier of fact 

and caused the Appellant harm. 

ISSUE TWO: The trial court erred in admitting State’s Exhibits 24, 25, and 26—photos printed from the internet of 

various gang symbols—as these exhibits were not properly 

authenticated.

During the testimony of Sergeant Clint Ponder—an officer who was not directly involved in the Appellant’s case and offered only expert testimony on gangs—the 

State sought to introduce State’s Exhibits 24, 25, and 26. (3 R.R. at 148-150; 5 R.R. at 

27-29). These images purported to show a variety of gang symbols associated with 

the 52 Hoovers-Crips, primarily revolving around the Houston Astros logo. Id.

A. Defense Counsel Preserved Error By Objecting When the State Sought 

To Enter the Exhibits Into Evidence

After the State had presented State’s Exhibits 24, 25, and 26 to Ponder, the 

prosecutor moved to have the trial court enter the exhibits into evidence. At this 

point, defense counsel objected, stating that “I have no idea where these exhibits were 

derived from, nor do I have any idea of how they’re relevant to the current case,” and 
17

that “This looks like somebody just printed it out off a website.” (3 R.R. at 149-150). 

After the trial court requested to inspect the exhibits, the trial court overruled defense 

counsel’s objections and entered the three photographs into evidence, which the State 

subsequently published to the jury. Id.

Although defense counsel did not specifically use the term “authentication,” 

the nature of his objection was apparent from context. See Tex. R. App. Proc. 

33.1(a)(1)(A) (error is preserved if an objection “stated the grounds for the ruling . . . 

unless the specific grounds were apparent from the context”). Neither the trial court 

nor the State expressed any confusion about the basis for defense counsel’s objection, 

and the trial court gave a ruling adverse to the defense counsel’s objection. Therefore, 

error was preserved for appellate review. See, e.g., Everitt v. State, 407 S.W.3d 259, 263 

(Tex. Crim. App. 2013) (reiterating that there are no hyper-technical requirements for 

error preservation); Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009) (an objection preserves error if it is “sufficiently clear to provide the trial judge and opposing 

counsel an opportunity to address and, if necessary, correct the purported error”); 

Lankston v. State, 827 S.W.3d 907, 909 (Tex. Crim. App. 1992) (“Straightforward 

communication in plain English will always suffice [to preserve error].”). 
18

B. Photographs Must Be Shown To Properly Represent the Object In Question By Any Witness Who Knows the Underlying Facts Portrayed In the 

Photos

Any error in the trial court’s decision to admit evidence over an authentication 

objection is reviewed under an abuse of discretion standard. Tienda v. State, 358 

S.W.3d 633, 638 (Tex. Crim. App. 2012). 

Issues of authentication occur when the relevancy of evidence is conditioned 

on its identity. Campbell v. State, 382 S.W.3d 545, 549-50 (Tex. App.—Austin 2012, no 

pet.). As a general rule, authentication can be achieved by direct testimony from a 

witness with personal knowledge, or by circumstantial evidence. Tex. R. Evid. 901. 

In regards to still photographs, the predicate for introduction requires proof of its accuracy as a correct representation of the subject at a given time, and its relevance to a 

material issue. Huffman v. State, 746 S.W.2d 212, 222 (Tex. Crim. App. 1988). Although it is ideal for the person who took the photograph to authenticate them from 

the witness stand, this is not an absolute necessity and a person other than the photographer can authenticate the pictures. Id. 

C. There Is Insufficient Evidence In the Record That State’s Exhibits 24, 

25, and 26 Are a Correct Representation Of the Facts Portrayed

There is nothing in the record to indicate what the source of State’s Exhibits 

24, 25, and 26 is. In arguing to the trial court that the photographs should be admitted, the State seemed to tacitly admit that these exhibits had been pulled from an uni-
19

dentified online source, but that this was permissible since Ponder “testified that he 

does sometimes use the Internet.” (3 R.R. at 149).

The circumstances under which a photograph was obtained is a significant factor in determining whether it has been properly authenticated through a witness who 

did not take the photograph. See Hernandez v. State, No. 03-04-00356-CR, 2006 WL 

191918, at *6 (Tex. App.—Austin Jan. 26, 2006, pet. ref’d) (not designated for publication) (holding that the seizure of a photograph by a police officer who did not take 

the photograph demonstrated sufficient circumstances to properly authenticate it). 

The State offered no explanation as to the origins of State’s Exhibits 24, 25, and 26. 

Ponder demonstrated no personal knowledge of when and where the photographs 

had been made, and could therefore not offer credible testimony as to whether the 

exhibits were fair and accurate depictions of what they purported to be. See Tex. R. 

Evid. 901(a).

In particular, State’s Exhibit 26 depicts what appears to be a large quantity of 

marijuana packaged for individual sale, a wad of twenty dollar bills, and two Houston 

Astros baseball caps arranged in a way that might be most appropriate for the cataloging of seized evidence by law enforcement. (3 R.R. at 151; 5 R.R. at 29). According to 

Ponder, this image demonstrates “just kind of an attractiveness to the gang, ‘Hey, you 

can make money and sell drugs,’ and you know, the coolness stature, I guess.” (3 R.R. 

at 151). But because Ponder demonstrated no knowledge of the origins of this image, 

there is no way to know whether this was an exhibit created by the State, members of 
20

law enforcement, or by a gang member. Further, there was no allegation made at trial 

that the Appellant was involved in drug sales or that he was carrying an inordinately 

large amount of marijuana or cash, as depicted in State’s Exhibit 26.

D. The Appellant Suffered Harm As the Introduction Of the Unauthenticated Images Allowed the Jury To Draw Unsubstantiated Connections Between the Exhibits And the Appellant’s Alleged Gang Membership

As was the case in the previous point of error, harmless error analysis under 

Texas Rules of Appellate Procedure 44.2(b) applies. State’s Exhibits 24, 25, and 26 

purported to be objective evidence of symbols employed by the 52 Hoovers-Crips 

gang, and the State used these exhibits through Ponder to link the imagery to the Appellant’s tattoos and the criminal activity of the gang, to which the Appellant was unfairly associated. There was no other evidence offered of the Appellant’s involvement 

in criminal activity outside of the allegation that the Appellant must be dealing drugs 

since that’s what this gang does, according to Ponder and as represented by State’s 

Exhibit 26. (3 R.R. at 151; 5 R.R. at 29).

Because the State was required to prove both that the Appellant was a member 

of a criminal street gang and that the gang he was a member of regularly engages in 

criminal activities, these exhibits were central to a critical element of the State’s case. 

See Tex. Penal Code §§ 46.02(a-1)(2)(c), 71.01(d). The introduction of these unauthenticated images thus harmed the Appellant, as they provided evidence of the alleged 

criminal activities of the 52 Hoovers-Crips.

 
21

PRAYER

Jeremy Washington asks this Honorable Court to reverse the judgment of guilt 

for the offense of unlawful carrying of a weapon and remand the case to the trial 

court for a new proceeding on guilt-innocence. 

Respectfully submitted,

ALEXANDER BUNIN

Chief Public Defender

Harris County, Texas

/s Mark Kratovil

MARK KRATOVIL

Assistant Public Defender

Texas Bar Number 24076098

1201 Franklin Street, 13th Floor

Houston, Texas 77002

Telephone: (713) 274-6728

Facsimile: (713) 437-4339

mark.kratovil@pdo.hctx.net
22

CERTIFICATE OF SERVICE

I certify that I provided a copy of the foregoing brief to the Harris County 

District Attorney’s appellate division by electronic delivery through eFile Texas on 

June 13, 2015.

/s Mark Kratovil

MARK KRATOVIL
23

CERTIFICATE OF COMPLIANCE

 Pursuant to Rule 9.4(i)(3), undersigned counsel certifies that this brief complies 

with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).

1. Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief 

contains 2,614 words printed in a proportionally spaced typeface.

2. This brief is printed in a proportionally spaced typeface using Garamond 14 

point font in text and Garamond 12 point font in footnotes.

3. Upon request, undersigned counsel will provide an electronic version of this 

brief and/or a copy of the word printout to the Court.

4. Undersigned counsel understands that a material misrepresentation in completing this certificate, or circumvention of the type-volume limits in Tex. R. App. Proc. 

9.4(j), may result in the Court's striking this brief and imposing sanctions against the 

person who signed it.

/s Mark Kratovil

MARK KRATOVIL