1. “Is expert opinion testimony that a defendant holds himself out as a gang member—without proof he is one—relevant to sentencing?”
2. “In assessing harm, did the court of appeals err in failing to isolate the opinion testimony from the properly admitted photographs on which that opinion was based?”
In Beham’s punishment retrial for aggravated robbery, the State offered photos from Beham’s Facebook page showing him displaying hand signs, wearing red, posing in front of a table laid out with cash and marijuana, and pointing a gun sideways at the camera alongside another man displaying a hand sign. The State then offered a former gang unit investigator’s opinion. Based solely on the photographs, he opined that even if Beham was not a gang member, he was holding himself out as one. The trial court admitted the opinion testimony over the defense’s relevance and Rule 403 objections.
On appeal, Beham renewed these complaints. The court of appeals found the testimony was irrelevant under Beasley v. State, 902 S.W.2d 452 (Tex. Crim. App. 1995), without proof that Beham was in a gang and that the gang’s activities were illegal. It also held the error harmful.
The State distinguishes Beasley and argues that evidence that Beham wanted others to see him as a gang member was relevant to sentencing, even if he was not actually in a gang. That Beham portrayed himself as violent and dangerous was information jurors could use to tailor an appropriate punishment. The State also argues the court of appeals’s harm analysis was erroneous because it (1) failed to consider the independent probative value of the photos themselves and (2) treated the opinion testimony as if it was actual gang-membership evidence.