July/August 2016 SDR - Voice for the Defense Vol. 45, No. 6
Voice for the Defense Volume 45, No. 6 Edition
D’s sentence for possession of child pornography was properly enhanced under 18 U.S.C.S. § 2252(b)(2) based on a prior state conviction for sexual abuse of an adult, since the phrase “involving a minor or ward” modified only abusive sexual conduct under the rule of the last antecedent and not the preceding basis of convictions for sexual abuse. Lockhart v. United States, 136 S. Ct. 958 (2016).
D pleaded guilty to possessing child pornography in violation of 18 U.S.C. § 2252(a)(4). Because D had a prior state-court conviction for first-degree sexual abuse involving his adult girlfriend, his presentence report concluded that he was subject to the 10-year mandatory minimum sentence enhancement provided in § 2252(b)(2), which is triggered by, inter alia, prior state convictions for crimes “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” D argued that the limiting phrase “involving a minor or ward” applied to all three state crimes, so his prior conviction did not trigger the enhancement. Disagreeing, the district court applied the mandatory minimum. The Second Circuit and Supreme Court affirmed.
D’s prior conviction is encompassed by § 2252(b)(2). A natural reading of the text supports that conclusion. The “rule of the last antecedent,” a canon of statutory interpretation stating that “a limiting clause or phrase . . . should ordinarily be read as modifying only the noun or phrase that it immediately follows,” Barnhart v. Thomas, 540 U.S. 20 (2003), clarifies that the phrase “involving a minor or ward” modifies only the immediately preceding noun phrase “abusive sexual conduct,” and that the phrases “aggravated sexual abuse” and “sexual abuse” are not so restricted. The rule “can . . . be overcome by other indicia of meaning,” but § 2252(b)(2)’s context reinforces its application in this case.
The prosecution’s failure to disclose material evidence violated D’s rights; the state post-conviction court improperly evaluated the materiality of each piece of evidence in isolation rather than cumulatively, and failed even to mention the statements of the two inmates impeaching the first witness. Wearry v. Cain, 136 S. Ct. 1002 (2016).
D unsuccessfully sought post-conviction relief in state court while on Louisiana death row. He urged that the prosecution failed to disclose evidence supporting his innocence, violating Brady v. Maryland, 373 U. S. 83 (1963), and that his trial counsel provided ineffective assistance, violating U.S. Const. amend. VI.
Contrary to the state post-conviction court, the Court here concluded that the prosecution’s failure to disclose material evidence violated D’s due process. The Court reversed the post-conviction court’s judgment on that count and remanded, and thus did not reach D’s ineffective-assistance claim. The denial of D’s Brady claim ran up against settled constitutional principles. The prosecution’s failure to disclose material evidence violated D’s rights because the newly revealed evidence sufficed to undermine confidence in D’s conviction. The only evidence directly tying D to capital murder was a first witness’ dubious testimony, corroborated by the similarly suspect testimony of a second witness; and the first witness’ credibility, already impugned by his many inconsistent stories, would have been further diminished had the jury learned various new evidence.
Where Ds (well-site leaders on the Deepwater Horizon drilling rig) were charged with 11 counts of seaman’s manslaughter (in violation of 18 U.S.C. § 1115) for the 11 deaths on the Deepwater rig in the blowout of the Macondo well, the district court did not err in dismissing those counts because neither defendant fell within the meaning of “[e]very . . . other person employed on . . . any vessel” in § 1115. United States v. Kaluza, 780 F.3d 647 (5th Cir. 2015).
The Fifth Circuit agreed with the district court that this phrase covered only persons with responsibility for the “marine operations, maintenance, and navigation of the vessel” and that defendants were not such persons.
The court’s condition forbidding any computer or internet access without prior probation-officer approval, for juvenile convicted of abusive sexual contact with a minor under 12, was too restrictive. United States v. Sealed Juvenile, 781 F.3d 747 (5th Cir. 2015).
The district court did not abuse its discretion in (1) forbidding contact with children under 16 without prior probation-officer approval, (2) forbidding loitering around places primarily used by children under 16, (3) requiring monitoring of juvenile’s computer and internet use, (4) requiring him to submit to searches and seizures, and (5) requiring him to produce financial records; additionally, the court did not plainly err in forbidding juvenile from engaging in an occupation where he has access to children, without prior probation-officer approval. However, the Fifth Circuit found the condition forbidding any computer or internet use or access without prior probation-officer approval was too restrictive; the Fifth Circuit ordered that this condition “is not to be construed or enforced in such a manner that the Juvenile would be required to seek prior written approval every single time he must use a computer or access the internet.” In light of this ruling, the Fifth Circuit also struck the special condition requiring the juvenile to produce evidence that no payments were made to gain access to the internet.
Where district court found D’s 28 U.S.C. § 2255 motion was successive and thus transferred the motion to the court of appeals pursuant to § 1631, D could appeal the transfer without a certificate of appealability; the Fifth Circuit affirmed the transfer and ordered dismissal. United States v. Fulton, 780 F.3d 683 (5th Cir. 2015).
A transfer order under § 1631 is not a final order within the meaning of 28 U.S.C. § 2253(c)(1)(B), and the appeal of such an order does not require a certificate of appealability. Finding that the district court correctly determined that the § 2255 motion was successive, the Fifth Circuit affirmed the transfer order; because another panel of the Fifth Circuit previously denied D’s motion for authorization for a successive petition, the Fifth Circuit remanded to the district court with instructions to dismiss D’s § 2255 motion for want of jurisdiction.
Agents had reasonable suspicion to stop D suspected of (and eventually convicted of) false statements in connection with the acquisition of a firearm (“straw buying”) based on a tip from the gun-shop employee from whom D bought the firearms. United States v. Ortiz, 781 F.3d 221 (5th Cir. 2015).
Additionally, the warrantless search of D’s vehicle was permissible under the automobile exception because D’s own statements to the agents provided probable cause for the search.
(2) D was not “in custody” for Miranda purposes when two agents questioned him in a law-enforcement vehicle for 20 minutes because, inter alia, the agents told him he was not under arrest.
The Government breached the plea agreement by using protected information to increase D’s sentence. United States v. Chavful, 781 F.3d 758 (5th Cir. 2015).
Where the Government, in its plea agreement with D, agreed that information obtained from D’s cooperation was “not to be used to increase [D’s] Sentencing Guideline level or used against [D] for further prosecution” and the agreement specifically referenced USSG § 1B1.8, the Government breached the agreement by using protected information to increase his sentence. The Fifth Circuit remanded for resentencing by a different district judge.
District court did not reversibly err in applying a 16- level “drug trafficking offense” enhancement under USSG § 2L1.2(b)(1)(A)(i) based on D’s prior Georgia conviction for possession with intent to distribute marijuana. United States v. Martinez-Lugo, 782 F.3d 198 (5th Cir. 2015).
The Fifth Circuit rejected the notion that an offense must require proof of remuneration or commercial activity to be included as a “drug trafficking offense” under USSG § 2L1.2. An offense that matches the listed “drug trafficking offenses” in the definitional Application Note, as did this Georgia offense (Ga. Code § 16-13-30(j)(1)), qualifies for enhancement even if the offense does not require such proof. Dennis dissented, arguing that “drug trafficking” in the text of the Guideline does require proof of remuneration or commercial activity.
District court did not err in sentencing illegal-reentry D to a $2,500 within-Guideline fine and alien D convicted of drug and gun offenses to a $5,000 within-Guideline fine with a monthly payment schedule set at 1/3 of each defendant’s prison earnings, conditional on the prisoner being allowed to work in prison. United States v. Pacheco-Alvarado, 782 F.3d 213 (5th Cir. 2015).
The district court’s order did not impermissibly trench upon the Federal Bureau of Prisons’ authority to administer its Inmate Financial Responsibility Program. Furthermore, although Ds’ presentence reports indicated that they had no present ability to pay, the fines were based on implicit conclusions about Ds’ future ability to pay and were not unreasonable. The Fifth Circuit did remand one defendant’s case to correct the written judgment to reflect the district court’s orally pronounced payment schedule.
Where D’s federal habeas counsel was also D’s state habeas counsel, the fact that ineffectiveness of state habeas counsel might constitute cause for failure to raise an ineffective-assistance claim did not require appointment of additional federal habeas counsel to investigate whether D had a claim; however, the Fifth Circuit exercised its authority to appoint supplemental counsel. Speer v. Stephens, 781 F.3d 784 (5th Cir. 2015).
Where federal habeas counsel for death-sentenced Texas D was also D’s state habeas counsel, the mere fact that ineffectiveness of state habeas counsel might (under Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Treviño v. Thaler, 133 S. Ct. 1911 (2013)), constitute cause for failure to raise an ineffective-assistance claim did not require the appointment of additional federal habeas counsel to investigate whether D had any viable claim under Martinez or Treviño; however, in the interest of justice, the Fifth Circuit exercised its authority under 18 U.S.C. § 3599 to appoint supplemental counsel for the sole purpose of determining whether D had additional habeas claims that ought to have been brought. The Fifth Circuit denied original counsel’s motion to withdraw and remanded the case for appointment of supplemental counsel and to consider in the first instance whether D had any claims pursuant to Martinez and Treviño that he might raise and, if so, whether those merited relief.
Fifth Circuit granted D’s motion for new supplemental federal habeas counsel and remanded for appointment of supplemental counsel and to consider in the first instance whether D had claims pursuant to Martinez and Treviño. Sandoval Mendoza v. Stephens, 783 F.3d 203 (5th Cir. 2015).
Citing Speer v. Stephens (above), the majority granted death-sentenced Texas D’s motion for new supplemental federal habeas counsel and remanded the case for appointment of supplemental counsel and to consider in the first instance whether D had any claims pursuant to Martinez and Treviño and, if so, whether those merited relief.
District court did not reversibly err in applying to illegal-reentry D a “drug trafficking offense” enhancement under USSG § 2L1.2(b)(1)(A)(i); although D’s previous offense of conviction (possession of a controlled substance for sale, Cal. Health & Safety Code § 11351) is not categorically a “drug trafficking offense,” D’s conviction was permissibly narrowed to possession of heroin for sale, which does qualify. United States v. Gomez-Alvarez, 781 F.3d 787 (5th Cir. 2015).
In applying this modified categorical approach, the district court did not clearly err in finding the criminal complaint was the charging instrument under which D was convicted, given the lack of any evidence to the contrary. Finally, the district court did not, on this record, clearly err in finding D was indeed the person convicted in the prior California case.
Court of Criminal Appeals
After finding the evidence insufficient to support D’s conviction of tampering with evidence by destruction, COA erred in not reforming the judgment to the lesser-included offense of attempted tampering with evidence because the State proved those elements. Rabb v. State, 483 S.W.3d 16 (Tex.Crim.App. 2016).
D was found guilty of tampering with evidence by destruction and appealed, asserting the evidence was legally insufficient to support his conviction; COA agreed. CCA agreed but remanded for COA to determine whether D’s conviction should be reformed to the lesser-included offense of attempted tampering with evidence under Thornton v. State, 425 S.W.3d 289 (Tex.Crim.App. 2014). COA then found it could not reform D’s conviction because he lacked the specific intent to destroy the evidence. The State filed a petition for review, which CCA granted to consider whether COA erred in its application of Thornton in choosing not to reform the judgment to the lesser-included offense. CCA reversed COA and remanded.
Reformation to the lesser offense was mandated under Thornton because COA determined that the factfinder found every element necessary to convict D of attempted tampering, and that the evidence was sufficient to support a conviction of attempted tampering. The evidence showed that the officers informed D that they were questioning him concerning a theft, and he then swallowed a baggie of pills.
Though D claimed he would not have pled guilty to drug possession had he known there was not enough substance left to test, his mistaken belief that drug evidence would be available to use against him at trial did not render his plea involuntary. Ex parte Palmberg, No. WR-82,876-01 (Tex.Crim.App. Feb 24, 2016).
D pled guilty to one count of possession of a controlled substance, namely cocaine, and the court sentenced him to 90 days in jail. He did not appeal. Seven years later, however, D filed this post-conviction habeas application under Tex. Code Crim. Pro. art. 11.07. He claimed his plea was involuntary because at the time he entered it, he mistakenly believed that if he proceeded to trial, the State would be able to prove the substance he possessed was cocaine. CCA remanded this application to the trial court for supplemental findings of fact. After remand, CCA ordered the application to be filed and set for submission to determine whether a guilty plea is involuntary when the defendant mistakenly believes that certain inculpating evidence would be available for use against him should he proceed to trial. CCA denied relief.
A plea is not necessarily involuntary because the defendant pled guilty under the mistaken belief that specific evidence would be available for use against him. D did not show that the State used false or misleading evidence to induce his plea, or that he was under any misapprehension about the true nature of the substance he possessed, and there was no evidence to undermine his judicial confession, which was alone sufficient to support his guilty plea.
When a jury imposed consecutive sentences that were unauthorized under Tex. Penal Code § 3.03(a) and was directed to reconsider, after which it imposed two sentences equaling the combined length of the unauthorized sentences, it was error to direct the jury to reconsider its sentences. Nixon v. State, 483 S.W.3d 562 (Tex.Crim.App. 2016).
D was charged with burglary of a habitation and evading arrest or detention with a vehicle. He was tried before a jury. He pled guilty to both. At the conclusion of evidence, the judge instructed the jury to find D guilty of the offenses. The jury was further instructed to assess punishment in each cause and was given the punishment ranges. During its deliberations, the jury sent a note to the judge that asked, “Do the sentences run concurrently or sequential[ly]?” The judge responded only that the jury was to continue deliberating. The jury returned verdicts of seven years for the burglary and nine years for the evading charge. However, on each verdict form there was an asterisk next to the term of years that referred to a handwritten notation at the bottom of the verdict. Each notation stated, “To be served consecutively with [the other charge] not concurrently.”
The judge did not receive the verdicts, but instead sent the jurors to deliberate further with this additional instruction: “You are further instructed that the Court cannot accept and receive your verdicts as stated. You are instructed that the sentences in both causes must be served concurrently by operation of law.” Soon after, the jury returned verdicts assessing punishment at 16 years’ confinement for both offenses. D was sentenced accordingly. D appealed. COA affirmed that Tex. Code Crim. Proc. art. 37.10(b) did not require the judge to accept and reform the original verdicts.
CCA reversed: “According to statute, however, the judge was required to accept the original verdicts and reform them in accordance with the law. We therefore must reverse the court of appeals’ judgments and reform the trial court’s judgments to reflect the original verdicts to be served concurrently.” The jury’s original verdicts were not informal, under Tex. Code Crim. Proc. art. 37.10(a), as they were complete, unambiguous, unconditional, and not contradictory; its verdicts were not cumulative sentencing authorized by Tex. Penal Code § 3.03 that was not punishment; and Tex. Code Crim. Proc. art. 37.10(b) clearly required the trial court to reform the jury’s verdicts to impose the punishment that was authorized and omit the punishment that was unauthorized.
The governor’s power to exercise a veto could not be circumscribed by the Legislature, courts, or district attorneys; when the State sought to prosecute the governor for a veto under the abuse of official capacity statute, Tex. Penal Code § 39.02, the prosecution violated separation of powers, Tex. Const. art. V, §§ 21, 30. Ex parte Perry, 483 S.W.3d 884 (Tex.Crim.App. 2016).
The charges against appellant Rick Perry arose from his Texas governorship. A Travis County grand jury returned a two-count indictment against him. Count I alleged the offense of “abuse of official capacity,” and Count II alleged the offense of “coercion of a public servant.” Count I alleged that Perry abused his official capacity by misusing funds appropriated to the Public Integrity Unit of the Travis County District Attorney’s Office, and Count II alleged he coerced a public servant, District Attorney Rosemary Lehmberg, by threatening to veto the funds for that unit if she did not resign.
“This case arises from a governor’s threat to exercise a veto and his ultimate exercise of that veto. Whether the State can prosecute the governor for these acts depends upon (1) whether prosecuting the exercise of a veto under the ‘abuse of official capacity’ statute is a violation of the Separation of Powers provision of the Texas Constitution, and (2) whether the relevant portion of the ‘coercion of a public servant’ statute, being used to prosecute the threat to exercise a veto, is facially unconstitutional in violation of the First Amendment. Before reaching the first question, we must also decide whether the governor can raise his separation of powers complaint as an as-applied challenge in a pretrial habeas application followed by an interlocutory appeal. Answering these three questions in the affirmative, we reverse the judgment of the court of appeals with respect to count one, affirm the judgment of the court of appeals with respect to count two, and order the dismissal of the indictment.” The portion of the coercion statute, Tex. Penal Code § 36.03(a)(1), prohibiting a threat, however communicated, to take or withhold action as a public servant, as it incorporated Tex. Penal Code § 1.07(a)(9)(F), was unconstitutionally overbroad in violation of U.S. Const. amend. I.
COA erred in finding Tex. Transp. Code § 724.012(b)(3)(B), requiring an officer to take blood from a repeat DWI offender who is arrested for that offense, was not facially unconstitutional; COA lacked the benefit of recent Supreme Court and CCA decisions. McGruder v. State, 483 S.W.3d 880 (Tex.Crim.App. 2016).
D was arrested for driving while intoxicated. As officers were preparing an affidavit for a blood-specimen warrant, they learned D had two prior DWI convictions, so they took him to the hospital without a warrant and had his blood drawn. They decided a warrant was unnecessary because D met the criteria for an automatic blood draw under Tex. Trans. Code § 724.012(b)(3)(B), which requires an officer who has arrested a driver for DWI to take a specimen of that driver’s breath or blood for analysis of blood alcohol concentration when the officer has reliable information that the driver has two or more prior DWI offenses; the driver may not refuse, and police must compel him to give a specimen, even in the absence of his assent-in-fact. At trial, the judge allowed the blood evidence though D objected that the statute was unconstitutional. D was convicted of felony DWI.
D framed his only point of error on appeal as follows: “In the absence of exigent circumstances or consent, Section 724.012(b)(3)(B) of the Texas Transportation Code, violates the Texas and United States constitutional prohibitions against unreasonable searches and seizures.” COA construed this to be a facial challenge to the constitutionality of the statute, not an as-applied challenge, and rejected it as such.
CCA vacated COA’s judgment and remanded to that court for further consideration in light of the intervening City of Los Angeles v. Patel, 135 S.Ct. 2443 (2015), and State v. Villarreal, 475 S.W.3d 784 (Tex.Crim.App. 2014). Patel held that a facial challenge is an attack on a statute itself as opposed to a particular application, and that Fourth Amendment challenges to statutes authorizing warrantless searches are no exception to the general rule that facial constitutional attacks may proceed under an array of constitutional provisions. Indeed, according to Patel, “facial challenges under the Fourth Amendment are not categorically barred or especially disfavored.”
Here, CCA replied: “Still, no appellate court in Texas of which we are aware has yet declared Section 724.012(b)(3)(B) to be unconstitutional on its face. This is no surprise, since facial challenges to the constitutionality of a statute are not ordinarily easy to establish.” To prevail on a facial challenge of the sort D brought, he must establish that the statute always operates unconstitutionally in all possible circumstances. COA observed that the statute, “as written . . . does not require a blood or breath specimen to be taken contrary to the Fourth Amendment; that is, without a warrant or a recognized exception to the warrant requirement.” Because the statutory mandate could be carried out consistently with the dictates of the Fourth Amendment, COA concluded, it was not unconstitutional on its face. When COA was considering this case, it did not have the benefit of Patel (determining the standard of review for facial constitutionality) or Villarreal (holding that § 724.012(b)(3)(B) does not, by itself, “form a constitutionally valid alternative to the Fourth Amendment warrant requirement”).
D’s conviction for resisting arrest was proper because he used force against an officer in opposing his arrest. Finley v. State, 484 S.W.3d 926 (Tex.Crim.App. 2016).
At D’s bench trial, the judge convicted him for resisting arrest because he opposed police attempts to handcuff him. COA found the evidence legally sufficient to support D’s conviction. CCA affirmed because D used force “against” the officers in opposing his arrest as required by the resisting arrest statute, Tex. Penal Code § 38.03. D used force against the officers by pulling against the officers’ force; pulling away from the officers satisfied the “in opposition or hostility to” the police officers requirement.
D did not preserve his objection to the two-step nature of his custodial interrogation (question first, give Miranda warnings later) because he made no challenge to this two-step interrogation in his written motions to suppress and only mentioned the two-step interrogation in the latter half of his closing argument at the motion to suppress hearing. Vasquez v. State, 483 S.W.3d 550 (Tex.Crim.App. 2016).
Prior to his capital murder trial, D filed two motions to suppress all oral statements given to police while he was in custody. The court allowed the statements, and D was convicted. D appealed the admission of his recorded interview on the ground that it was obtained after unrecorded and pre-Miranda interrogations, pursuant to an illegal two-step interrogation. CCA disagreed.
“We granted the State’s petition for discretionary review to determine whether appellant preserved his objection to the two-step nature of his custodial interrogation when he lodged a delayed objection that put neither opposing counsel nor the trial court on notice as to its legal basis. Because we hold that he did not, we reverse the judgment of the Fourteenth Court of Appeals.” The State’s lack of a response to the “two-step” comment at the hearing indicated that it did not understand the objection because the State had the burden of disproving a deliberate two-step interrogation, and it had a witness available to testify as to warnings but did not call him. Because D failed to preserve his two-step interrogation complaint, it was immaterial whether he was subjected to custodial interrogation during any of the prior unrecorded interviews, which were not offered as evidence.
Where an indictment alleged D committed theft against four complainants pursuant to a continuing course of conduct, COA erred in holding that jurors had to unanimously agree on each underlying transaction used to comprise the Tex. Penal Code § 31.09 aggregate theft charge. Kent v. State, 483 S.W.3d 557 (Tex.Crim.App. 2016).
An indictment alleged that D, a mortgage broker, committed theft against four named complainants in an amount exceeding $200,000, and that the thefts occurred over a specified period and were pursuant to one scheme or continuing course of conduct. A jury found him guilty, and the court sentenced him to 60 years’ imprisonment and ordered him to pay restitution to the complainants. On appeal, D alleged reversible jury-charge error. COA agreed and remanded for a new trial. CCA reversed COA.
“Section 31.09 of the Penal Code provides that, ‘[w]hen amounts are obtained in violation of [Chapter 31: Theft] pursuant to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense and the amounts aggregated in determining the grade of the offense.’ In this case, because the thefts were alleged to have occurred pursuant to a single scheme or continuing course of conduct, the conduct may be considered as one offense and the amounts aggregated. . . . We have recognized that, ‘[a]lthough theft under Section 31.09 consists of two or more incidents of theft, the statute makes them one offense.’ . . . Thus, although appellant was alleged to have committed multiple thefts, pursuant to the Section 31.09 allegations they constituted a single felony offense.” In other words, to fulfill § 31.09, any number of specific acts of theft may be combined in a single charge as long as they were part of the same scheme. The aggregated theft is proven as long as the jury unanimously agrees that the proven thefts exceed the threshold amount, regardless of which transactions each juror believes to have occurred. The trial court properly overruled D’s objection to the jury charge and submitted a proper application paragraph that tracked the indictment.
Court of Appeals
Where D was convicted of possession of meth with intent to deliver, Tex. Health & Safety Code § 481.112(d), he was not entitled to a mistrial based on an officer’s testimony that he was watching a drug house before he stopped D because the court instructed the jury to disregard the testimony; also, under Tex. R. App. P. 33.1, D failed to preserve his constitutional complaints. Carrion v. State, No. 11-14-00123-CR (Tex.App.—Eastland Apr 29, 2016).
“In Issues One and Two, Appellant argues on appeal that the trial court abused its discretion and denied Appellant his Sixth Amendment right to present a defense. To strengthen his defense that he no longer used, sold, or possessed drugs and that the drugs were planted in his home by [witness], Appellant sought to introduce into evidence the police video of the . . . traffic stop and the testimony that [witness] avoided the subpoena that Appellant had requested for him. The State objected to the video on relevance and hearsay grounds and to the subpoena evidence on hearsay grounds. The trial court sustained the objections. . . . Appellant, however, did not, at any time, object or advise the trial court that Appellant’s Sixth Amendment right to present a complete defense was violated. Because Appellant did not raise this argument at trial, he has failed to preserve error for our review. . . .
“In Appellant’s third issue, he argues that the trial court erred when it denied his motion for mistrial. . . . During cross-examination, the State asked Officer Poynor whether the house he was ‘watching’ before the traffic stop of Appellant was a ‘known drug house.’ Officer Poynor testified, ‘Yes.’ Appellant objected, and the trial court sustained his objection and specifically instructed the jury ‘to disregard the argument from counsel, State’s counsel, with regard to that matter, that response that was just made.’ . . . The trial court did not err when it denied Appellant’s motion for mistrial because the prompt instruction was sufficient. . . .
“In Appellant’s fourth issue, he argues that the trial court abused its discretion and denied Appellant his Sixth Amendment right to confrontation when it overruled his hearsay objection and allowed a deputy sherriff to testify during the punishment phase of the trial that Appellant was a member of the Texas Syndicate gang. . . . Appellant objected to the deputy sheriff’s testimony on hearsay grounds, but did not raise any constitutional objections. Appellant did not, at any time, object or advise the trial court that Appellant’s Sixth Amendment right to confrontation was violated. Because Appellant did not raise this argument at trial, Appellant has failed to preserve error. . . . We affirm the judgment of the trial court.”