Watts, Kevin ( 2004 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-74,593

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KEVIN WATTS, Appellant

v.

THE STATE OF TEXAS

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APPEAL FROM BEXAR COUNTY

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Per Curiam.

   On February 13, 2003, the appellant was convicted of capital murder, ⁽¹⁾ an offense that occurred on March 1, 2002. Pursuant to the jury's answers to the special issues set forth in Code of Criminal Procedure Article 37.071, Sections 2(b) and 2(e), the trial court sentenced the appellant to death. ⁽²⁾ Direct appeal to this Court is automatic. ⁽³⁾ The appellant raises three points of error. We affirm.

The first point of error in the appellant's brief complains that "the trial court erred (abuse of discretion standard) when during the punishment phase it admitted evidence of [his] future membership in a black racist prison gang against [him] in violation of Dawson v. Delaware, 503 U.S. 159 . . . (1992) (constitutional error to admit evidence of defendant's membership in white racist prison gang where that evidence was not relevant to any issue being decided at the punishment phase)." The appellant complains that during punishment, "the State was allowed over objection to show the jury a hand written letter from [him] written from the Bexar County Adult Detention Center while [he] was awaiting trial." He also complains that, in its evidence and its jury arguments, the State attempted to unfairly prejudice the white jury with his past, present, and future membership in racist black gangs. Specifically, he claims that the trial court improperly allowed Sergeant Ricardo Vijil, Sergeant Mark Gibson, Sonia Watts, and Tonya Prince to testify as to his gang membership, improperly allowed the admission of a letter he wrote while incarcerated, and improperly allowed the prosecutor to refer to his gang membership during the punishment phase of trial.

"As a prerequisite to presenting a complaint for appellate review, the record must show that (1) the complaint was made to the trial court ...." ⁽⁴⁾ The appellant has not satisfied this prerequisite.

During the punishment phase, the State introduced Exhibit 105-A, a letter written by the appellant while in jail describing how he wanted to become a member of the Black Gorilla Family prison gang. The appellant objected to the admission of the letter on the grounds that the letter had been obtained in violation of county-jail regulations and state and federal laws. The appellant never objected to the letter on Dawson or First Amendment grounds or even mentioned gang membership in his objection. Similarly, when the State questioned Sergeant Vijil about whether the appellant admitted that he was a member of a gang and Vijil answered affirmatively, the appellant objected on hearsay grounds. The appellant never objected on Dawson or First Amendment grounds or even mentioned gang membership in his objection. The appellant did not preserve a constitutional claim with respect to the introduction of the letter into evidence or Vijil's testimony because his objections at trial do not comport with the claim he now raises on appeal.

The appellant also complains about testimony by Sergeant Gibson. However, it was the appellant who elicited testimony from Gibson about gang affiliation; when Gibson testified about gangs, the appellant did not object. In regard to Watts's and Prince's testimony about gangs, the appellant also made no objection. Similarly, the appellant made no objection to the State's reference to his gang membership during its closing punishment arguments. Because the appellant failed to object at trial, he has not preserved error for our review. Point of error one is overruled.

In his second point of error, the appellant argues that his "sentence of death is grossly proportionate [sic] to the crimes committed in violation of the Eighth Amendment [to the] United States Constitution (cruel and unusual--evolving standards of decency--proportionality)." He asks this Court "to revisit [our] holdings in the light of legally evolving standards of decency" and conduct a proportionality review. We have previously held that this Court does not conduct proportionality reviews in this context. Ladd v. State, 3 S.W.3d 547, 574 (Tex. Cr. App. 1999), cert. denied, 529 U.S. 1070 (2000). Point of error two is overruled.

In point of error three, the appellant complains that "the death penalty sentence violates the Eighth Amendment [to the] United States Constitution (cruel and unusual)." We have previously rejected this argument. Brooks v. State, 990 S.W.2d 278, 288 (Tex. Cr. App.), cert. denied, 528 U.S. 956 (1999). Point of error three is overruled.   

We affirm the judgment of the trial court.

En banc.

Delivered December 15, 2004.

Do Not Publish.

1.

See Tex. Penal Code § 19.03(a)(7).

2.

See Tex. Code Crim. Proc. art. 37.071, § 2(g)

3.

See id., § 2(h).

4.

Tex. R. App. P. 33.1 (a).