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Click here for the full text of this decision FACTS:In November 2005, Calixto Garcia and another man approached Raul Moreno and three of his friends while they were repairing a truck in the parking lot of an apartment complex. Garcia had a gun and his companion had a knife. Garcia racked his gun to chamber a round, pointed it at Moreno’s head, and ordered the four men to get together while his companion took their property. Shortly after the robbery, Officer Juarez arrived on the scene and began investigating. One of the victims identified the apartment that Moreno and his companion entered following the robbery. As Juarez approached the apartment, the door opened and a man entered the walkway, looked around, saw Juarez, returned to the apartment, and shut the door. While Juarez called for backup, the apartment door opened again. Garcia appeared, pointing a gun directly at Juarez. Garcia racked the gun and pulled the trigger, but the gun misfired. Garcia quickly retreated into the apartment and slammed the door. The police found Garcia in the apartment bedroom and arrested him. A grand jury later indicted Garcia for the robbery and aggravated assault of a public servant. Garcia did not make any pretrial request that the state provide notice of its intent to introduce extraneous conduct evidence. Nevertheless, the state did so three months before trial. A month later, the state supplemented with specific notice of its intent to use evidence of Garcia’s membership, affiliation or association with the Southwest Cholos gang and, in an amendment two weeks before trial, notified Garcia of its intent also to use evidence of Garcia’s membership, affiliation or association with the “Houstone” prison gang. The state identified two witnesses that it planned to call to testify on the subject of gang affiliation. Moreover, Harris County Deputy Sheriff Scott, who had two and a half years of experience working with Houston-area criminal street gangs, photographed Garcia’s tattoos approximately three weeks before trial. After the jury found Garcia guilty, the state sought to admit evidence of Garcia’s gang membership or affiliation during the punishment phase of the trial. Garcia objected based on an alleged lack of notice by the state concerning the evidence. The trial court overruled the objections. Scott testified during the punishment phase. Based on his knowledge, training and experience, Scott opined that Garcia’s tattoos identified him as a member of both the Southwest Cholos street gang and the Houstone prison gang. Houston Police Officer Valles, a 10-year veteran and member of a gang patrol unit that experiences daily contact with the Southwest Cholos, also provided expert testimony concerning the alleged violent and otherwise criminal activities that the Southwest Cholos and Houstone were generally involved in. HOLDING:Affirmed. Both of Garcia’s issues on appeal, the court stated, contested the admission of evidence relating to gang membership, affiliation or association during the punishment phase of trial. First, the court noted that under Texas Code of Criminal Procedure Art. 37.07, �3(a)(1), during the punishment phase “evidence may be offered . . . as to any matter the court deems relevant,” including evidence of the defendant’s reputation or character. Garcia, the court stated, rightly observed that the punishment-phase evidence of Garcia’s membership, affiliation or association with the Southwest Cholos and Houston gangs constituted extraneous evidence of crimes or bad acts governed by Art. 37.07 and Rule of Evidence 404(b). Article 37.07, the court stated, expressly states that “[t]he requirement under this subsection that the attorney representing the state give notice applies only if the defendant makes a timely request to the attorney representing the state for the notice.” As the state points out, nothing in the record indicates that Garcia made a timely request that the state notify him of its intent to use extraneous conduct evidence. Consequently, nothing triggered an obligation for the state to provide Garcia with this notice. Thus, the court found that trial court did not abuse its discretion in allowing the jury to consider evidence of his gang membership, affiliation or association in determining the appropriate sentence. Garcia also asserted that the opinion testimony of Scott and Valles should have been excluded, because it lacked relevance, or because any probative value it had was substantially outweighed by the danger of unfair prejudice. But the court disagreed with these assertions, finding the testimony admissible and noting that as a general matter, testimony regarding a defendant’s affiliation with a gang may be relevant and admissible at the punishment phase to show the defendant’s character. Accordingly, the court concluded that the trial court acted within its sound discretion in admitting the evidence relating to Garcia’s gang membership, affiliation or association, and photographs of his gang-related tattoos. OPINION:Bland, J.; Radack, C.J., and Alcala and Bland, JJ.

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