Jeremy Dion Washington v. The State of Texas

A jury convicted Jeremy Dion Washington of the offense of unlawfully

carrying a handgun while a member of a criminal street gang. The court assessed

his punishment at one year’s confinement in county jail, then suspended the sentence

and placed Washington on community supervision for two years. In two issues,

Washington argues that the trial court erred by: (1) allowing an officer to testify as

an expert witness on the issue of gang membership in violation of Texas Rule of

Evidence 702, and (2) admitting photographs of various gang symbols because those

exhibits were not properly authenticated. Finding no reversible error, we affirm the

trial court’s judgment.

Background

Officer Sullivan testified at Washington’s trial that he was able to identify

local criminal street gangs and their members based primarily on the “street

experience” he gained as a member of the Houston Police Department Gang

Division’s Crime Reduction Unit, as well as training he had received regarding the

identification of gang members. Over objection, the trial court allowed Sullivan to

offer expert testimony on the issue of “gang membership” and “whether somebody

can be identified as a gang member by specific criteria.”

Sullivan testified that he stopped Washington’s car during a routine traffic

stop in October 2011. Upon approaching the vehicle, he noticed that Washington’s

clothing, his car, and a bandana in the car’s center console, were all a shade of blue

that he believed to be associated with the 52 Hoovers-Crips, a criminal street gang.

During the traffic stop, Sullivan asked Washington whether he was a gang member.



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Washington responded that he was a “former 52 Hoovers-Crips.” At Sullivan’s

request, Washington removed his shirt and showed Sullivan the numerous tattoos

that covered his chest, back, shoulder, and abdomen. Sullivan recognized some of

the tattoos as being symbols of the 52 Hoovers-Crips. In particular, Officer Sullivan

noted that Washington had a large tattoo of a pair of dice with “5” and “2” on his

upper left shoulder, and a large tattoo of the numbers “5” and “2” prominently

displayed on his stomach. At the conclusion of the traffic stop, Washington left the

scene.

Sullivan subsequently searched for Washington in HPD’s “Gang Tracker”

database, but could not locate an entry for him. At trial, Sullivan explained that Gang

Tracker is a database program used by HPD to identify and track former and active

gang members by documenting their interactions with law enforcement. He testified

that an individual must be identified as a gang member based on at least two of eight

characteristics in order to be entered into the database. Sullivan identified five of the

eight characteristics used by Gang Tracker (gang colors, tattoos, self-admission,

associating with documented gang members, and information from confidential and

reliable witnesses) and testified that he needed to consult the program in order to list

the remaining three criteria.

Based on Washington’s admitted affiliation with the criminal street gang and

his gang-related tattoos, Sullivan entered Washington’s information into Gang



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Tracker, along with photographs that he had taken of Washington, his car, and his

tattoos. Sullivan’s database entry noted that Washington was a “former” member of

the 52 Hoovers-Crips.

Six months after Washington’s encounter with Officer Sullivan, Officer C.

Ferzenni and his partner, Officer R. Rivas, pulled Washington over for another

routine traffic stop. When the officers approached Washington’s vehicle, Rivas

noticed the handle of a pistol between the driver’s seat and the center console. At

that point, Ferzenni removed Washington from the vehicle, frisked him, and placed

him in the backseat of the patrol car. Washington explained to the officers that he

was a security guard and he used the gun for his work.

Ferzinni, like Sullivan, is a member of the Gang Division’s Crime Reduction

Unit and was also allowed to testify as an expert regarding “whether somebody can

be identified as a gang member by specific criteria.” Ferzenni testified that because

Washington was not wearing a shirt during the traffic stop, he observed some of the

same tattoos that Sullivan had documented several months earlier, including the

large “5” and “2” on Washington’s stomach and the dice on Washington’s left

shoulder. He explained that these images are associated with the 52 Hoovers-Crips

and linked Washington to the criminal organization. Ferzenni also testified that

Washington’s car was painted blue, the predominant color used by the 52 Hoovers

Crips in Houston. Based on his observations, Ferzenni searched for Washington in



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Gang Tracker and discovered that Washington’s affiliation with the Hoovers-Crips

had already been documented. Ferzenni arrested Washington for unlawfully carrying

a handgun while a member of a criminal street gang.

At trial, Sergeant C. Ponder with HPD’s gang division gave expert testimony

regarding the identification of 52 Hoovers-Crips members and the history and origin

of the criminal street gang. Ponder testified that the colors blue and orange are

commonly associated with the 52 Hoovers-Crips, but the predominant color used in

Houston is blue.

Sergeant Ponder took several photographs of Washington’s tattoos the day of

trial which were admitted without objection. Using those photographs, Ponder gave

a detailed description of some of Washington’s gang-tattoos and explained the

meaning behind the various symbols and imagery used in those tattoos, including

the pair of dice with the numbers “5” and “2” and the large “5” and “2” on

Washington’s stomach with the acronym “HCC” inside. Ponder explained that

“HCC” stands for “Hoovers-Crips Criminal.” Ponder also described the large

Astro’s logo with an “H” in front of it and a broken five-point star. According to

Ponder, the “H” indicated that Washington was from Houston, and the broken

five-point star was intended to show disrespect to another group of gangs known as

the People Nation. Ponder further explained that the Crips and Bloods are rival gangs

and Crips, who are not allowed to use the letter “B,” will usually put an “X” inside



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the letter, break it, or turn it upside down. In this case, Washington had several

tattoos with “X”s inside the letter “B.”

When asked if anyone would get a gang tattoo while not being in a gang,

Ponder said such a decision would “definitely not [be] smart,” since they could be

targeted by rival gangs, the gang itself, or the police. Ponder also explained that

individuals who want to leave or quit a gang can have their tattoos removed, covered

up, or altered by a tattoo artist and that the City of Houston has programs to have

gang tattoos removed for free. Based on Washington’s open display of his tattoos,

the custom paint job on his car, and the blue bandana found in his car, it was Sergeant

Ponder’s opinion that Washington was an active member of the 52 Hoover-Crips at

the time of his arrest.

Washington testified that he was a former member of the 52 Hoovers-Crips

and that he had not associated with any known gang members or engaged in any

criminal activities since he had graduated from high school five years earlier.

According to Washington, he got the tattoos when he was a 15 year-old high school

freshman because “everybody was doing it” and he did not know the significance of

the dice tattoo at that time. Washington expressed a desire to have his tattoos

removed and claimed that he did not know that tattoos could be removed or altered

prior to charges being filed in this case. When asked what the numbers “5” and ”2”

meant to him, Washington replied it was his bus route, and that he had those numbers



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tattooed on his stomach because “[t]hat’s the side of town we were staying on, you

know.”

Expert Testimony

In his first issue, Washington argues that the trial court erred by allowing

Officer Sullivan to testify as an expert witness on the issue of criminal street gang

membership because the State failed to show that the testimony was reliable. See

TEX. R. EVID. 702. According to Washington, Sullivan’s testimony was unreliable

because he was unable to list all of the criteria used to identify gang members without

referring to Gang Tracker and, as a result, Washington was unable to properly vet

Sullivan’s methodology.

A. Standard of Review and Applicable Law

We review the admission of expert opinion testimony for an abuse of

discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App.

2000) (citing Prystash v. State, 3 S.W.3d 522, 527 (Tex. Crim. App. 1999));

Hernandez v. State, 53 S.W.3d 742, 750 (Tex. App.—Houston [1st Dist.] 2001, pet.

ref’d). We consider the trial court’s ruling in light of the evidence presented at the

time of its ruling, and we will uphold the ruling if it lies within the zone of reasonable

disagreement. See Weatherred, 15 S.W.3d at 542. A trial court enjoys wide latitude

in determining whether expert testimony is admissible. Hernandez, 53 S.W.3d at

750.



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Rule 702 provides that an expert may testify if the expert’s “scientific,

technical, or other specialized knowledge will help the trier of fact to understand the

evidence or to determine a fact in issue.” TEX. R. EVID. 702; Duckett v. State, 797

S.W.2d 906, 914 (Tex. Crim. App. 1990), disapproved on other grounds, Cohn v.

State, 849 S.W.2d 817 (Tex. Crim. App. 1993) (noting that to be admissible, expert

testimony must “assist” trier of fact). A witness may be qualified as an expert to give

such testimony on the basis of his or her knowledge, skill, experience, training, or

education. TEX. R. EVID. 702.

“Because the possible spectrum of education, skill, and training is so wide, a

trial court has great discretion in determining whether a witness possesses sufficient

qualifications to assist the jury as an expert on a specific topic in a particular case.”

Rodgers v. State, 205 S.W.3d 525, 527–28 (Tex. Crim. App. 2006). Indeed, “expert

testimony does not have to be based upon science at all; by its terms, Rule 702, by

applying to ‘technical or other specialized knowledge,’ permits even nonscientific

expert testimony.” Morris v. State, 361 S.W.3d 649, 654 (Tex. Crim. App. 2011).

The reliability of such evidence may be established by showing that the field of

expertise involved is legitimate, the subject matter of the expert’s testimony is within

the scope of that field, and the expert’s testimony properly relies on or utilizes the

principals involved in that field. See Weatherred, 15 S.W.3d at 542. The behavior of

gangs and gang members is a generally accepted area of expert testimony which



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involves the gaining of specialized knowledge through experience or personal

research. See Morris, 361 S.W.3d at 656.

The erroneous admission of expert testimony constitutes non-constitutional

error. See Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010); Solomon v.

State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). Non-constitutional error requires

reversal only if it affects the substantial rights of the accused. See Tex. R. App. P.

44.2(b); Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011). A substantial

right is affected when the error had a substantial and injurious effect or influence in

determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.

1997). We will not overturn a criminal conviction for non-constitutional error if,

after examining the record, we have fair assurance that the error did not influence

the jury, or had but a slight effect. Barshaw, 342 S.W.3d at 93. Error in the admission

of evidence may be rendered harmless when substantially the same evidence is

admitted elsewhere without objection. See Leday v. State, 983 S.W.2d 713, 717–18

(Tex. Crim. App. 1998).

B. Analysis of Admission of Expert Testimony

Washington argues that the trial court abused its discretion when it allowed

Sullivan to opine on the issue of Washington’s gang membership because Sullivan,

who was unable to properly articulate the methodology he used to identify



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Washington as a street gang member, did not demonstrate that his testimony was

sufficiently reliable.

Officer Sullivan testified about his training and experience in the area of

Houston gangs. His testimony was limited to the field in which he could claim

expertise, gang membership—specifically the identification of members of the 52

Hoovers-Crips—which is generally accepted as a legitimate field of expertise. See

Morris, 361 S.W.3d at 656 & n.31 (citing Ortiz v. State, 93 S.W.3d 79, 86 (Tex.

Crim. App. 2002) and United States v. Padilla, 387 F.3d 1087, 1094 (9th Cir. 2004)

(concluding detective’s expert testimony based on his “extensive experience with

Los Angeles street gangs, and the Cuatro Flats gang in particular” was reliable)).

Sullivan’s testimony that he determined that Washington was a member or former

member of the 52 Hoovers-Crips, and thus eligible for inclusion in Gang Tracker

when he encountered him in October 2011, is within the scope of that field. Officer

Sullivan also explained that he identified Washington as a member or former

member of the 52 Hoovers-Crips based primarily on two factors—Washington’s

self-admission and his gang-related tattoos. Both self-admission and gang-related

tattoos are factors regularly relied upon by law enforcement to identify gang

members, as evidenced by Sullivan’s testimony that these are two of eight factors

used to evaluate someone’s eligibility for inclusion in HPD’s Gang Tracker database

program. The limited testimony establishes that Officer Sullivan’s expert testimony



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meets the requirements for reliability. Weatherred, 15 S.W.3d at 542; see generally

Padilla, 387 F.3d at 1094 (concluding detective’s expert testimony based on his

street experience was reliable); United States v. Hankey, 203 F.3d 1160, 1168 (9th

Cir. 2000) (holding that “Daubert factors (peer review, publication, potential error

rate, etc.) simply are not applicable to [expert testimony on gang membership],

whose reliability depends heavily on the knowledge and experience of the expert,

rather than the methodology or theory behind it”). Given the wide latitude trial courts

have in determining whether expert testimony is admissible, we cannot say that the

court’s ruling allowing Sullivan to opine as an expert on the issue of gang

membership lies outside the zone of reasonable disagreement. See Weatherred, 15

S.W.3d at 542; Hernandez, 53 S.W.3d at 750.

We further note that Sullivan’s testimony that Washington’s tattoos signified

his membership in the 52 Hoovers-Crips was cumulative of the testimony of the

other officers in this case. In particular, Sergeant Ponder opined that Washington

was a criminal street gang member at the time of his arrest based on Washington’s

open display of his gang-related tattoos and gang colors when he was stopped by

Officers Ferzenni and Rivas. Washington is not challenging Ponder’s expert

testimony on appeal. See Leday, 983 S.W.2d at 717–18 (noting that erroneous

admission of evidence is rendered harmless when equivalent evidence is admitted

elsewhere without objection).



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We overrule Washington’s first issue.

Admission of Evidence

In his second issue, Washington argues that the trial court abused its discretion

by admitting still images containing symbols purportedly associated with the 52

Hoovers-Crips (State’s Exhibits 24, 25, and 26) into evidence during Sergeant

Ponder’s testimony. According to Washington, State’s Exhibits 24, 25, and 26 were

not properly authenticated because Ponder demonstrated no personal knowledge of

where these images came from and the State offered no explanation as to their

origins.

A. Standard of Review and Applicable Law

We review a trial court’s decision to admit evidence over an authentication

objection under an abuse of discretion standard. Tienda v. State, 358 S.W.3d 633,

638 (Tex. Crim. App. 2012). If the trial court’s ruling is at least within the zone of

reasonable disagreement, the appellate court will not interfere. Id.

The requirement of authentication is a condition precedent to the admissibility

of evidence and is satisfied by evidence sufficient to support a finding that the matter

in question is what its proponent claims. TEX. R. EVID. 901(a). In a jury trial, the

preliminary question for the trial court to decide is simply whether the proponent of

the proffered evidence has supplied facts that are sufficient to support a reasonable

jury determination that the evidence is authentic. Tienda, 358 S.W.3d at 638; see



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also Manuel v. State, 357 S.W.3d 66, 74 (Tex. App.—Tyler 2011, pet. ref’d) (“The

proponent must only produce sufficient evidence that a reasonable fact finder could

properly find genuineness.”).

B. Analysis

Prior to the admission of State’s Exhibits 24, 25 and 26, Sergeant Ponder

testified that he was a patrol sergeant with HPD and had been with the department

for fifteen years. Ponder testified that he had been assigned to HPD’s Gang Division

in the Fondren District for ten of those fifteen years, during which time he handled

“anything that’s gang-related” in that area, “from robbery to burglary to a simple

graffiti case.” Although he had received over 100 hours of gang-related training

while with HPD, Sergeant Ponder testified that his “street experience” was “much

more valuable.” Ponder explained that he acquired most of his gang-related

knowledge by “talking to gang members on the streets and learning from them[,]

learning their tattoos and symbols or terminology, what they say, what it means.”

According to Ponder, most of the gang members he encountered were proud of their

gang-affiliation and explained the meaning behind their tattoos and colors.

Ponder testified that the 52 Hoovers-Crips gang is a criminal street gang that

he began noticing in Houston around 2000. According to Ponder, the gang is

involved in “all types of crimes” in the Houston area, “[a]nywhere from theft to

burglary to robbery to drug possession, drug delivery, [and] homicides.” Ponder



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testified that the colors blue and orange are commonly associated with the 52

Hoovers-Crips, but the predominant color used in Houston is blue.

Sergeant Ponder took several photographs of Washington’s tattoos the day of

trial and, using those photographs, Ponder gave a detailed description of some of

Washington’s gang-tattoos and explained the meaning behind the various symbols

and imagery used in those tattoos and their connection to the gang culture. When

asked if he commonly used the internet to educate himself “as far as signs or symbols

gangs are currently using,” Ponder responded that he did, but that he relied mostly

on the signs and symbols he saw being used locally. At that point, the State showed

Ponder State’s exhibits 24, 25 and 26. Ponder testified that he was familiar with the

images in those exhibits, which are images commonly associated with the Hoovers

Crips. According to Ponder, the exhibits fairly and accurately represented images

regularly used by the Hoovers-Crips.

Washington contends that Sergeant Ponder could not offer credible testimony

as to whether the exhibits were fair and accurate depictions of what they purported

to be because he lacked personal knowledge of when and where the photographs

were made and there was nothing in the record to indicate the source of these

photographs. The lack of testimony regarding the source of these exhibits is not

dispositive of their admissibility; however, particularly when the proponent is using

them for illustrative purposes and is not attempting to link the exhibits to the



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defendant. See Hartsock v. State, 322 S.W.3d 775, 779–80 (Tex. App.—Fort Worth

2010, no pet.) (finding trial court did not abuse its discretion in allowing videotape

of eyes with and without nystagmus into evidence despite witness not knowing who

took video, since purpose was to illustrate nystagmus).

Here, Sergeant Ponder’s expert testimony regarding his experience with the

52 Hoovers-Crips and the signs, symbols, and colors used by the gang is sufficient

to support a reasonable jury determination that the exhibits are what Ponder claimed

they were—“images that the Hoovers-Crips regularly used.” See Tienda, 358

S.W.3d at 638; Manuel, 357 S.W.3d at 74. In light of Ponder’s testimony, we cannot

say that the trial court’s decision to admit State’s exhibits 24, 25 and 26 was an abuse

of discretion.

We overrule Washington’s second issue. We affirm the trial court’s judgment.