CAUSE NO.  

THE STATE OF TEXAS

V.

DEFENDANT
§	IN THE  ___________COURT
§
§	OF
§
§	___________ COUNTY, TEXAS					
MOTION TO EXCLUDE TESTIMONY OF DEFENDANT’S
ALLEGED GANG AFFILIATIONS

TO THE HONORABLE JUDGE OF SAID COURT:
	COMES NOW the Defendant pursuant to Rule 401, 402, 403, and 404(b) of the Texas Rules of Evidence, and under the applicable case law, and hereby requests that the Court order that all testimony on the part of any State’s witness as to any supposed “gang” affiliations, connection, membership, or association on the part of this Defendant be excluded from trial and as grounds therefore would show unto the Court:
I.
	Any such proffered evidence or testimony would be immaterial under Rule 401 of the Texas Rules of Evidence, in that the proposition for which such testimony would be offered would not be of consequence to the determination of this case. Any such proffered testimony of gang associations would also not be probative, since Defendant is charged with (Offense), and the elements of said offense are _________________________. As the proffered testimony would not be material or probative to the instant case, any such evidence or testimony regarding gangs would therefore be irrelevant and immaterial under Rule 401, Texas Rules of Evidence, and therefore inadmissable under Rule 401.
	Defendant further requests that should the Court find the proffered testimony relevant, that the Court articulate into the record of the Cause the purpose for which the evidence is being offered by the proponent and admitted by the Court, pursuant to the rule of Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990).
II.
	Any testimony regarding gang matters would be far more prejudicial than probative within the meaning of Texas Rule of Evidence 403, since the concept of a “gang” necessarily produces egregious associations in the minds of the jury, the trier of fact, the effect being to convict and punish the Defendant on the basis of activities of other unrelated individuals, and on the basis of other crimes unrelated to this Defendant’s activities.  Under Rule 403, evidence that is relevant should still be excluded if the Court determines that it has “an undue tendency to suggest that a decision be made on an improper basis.” A Rule 403 analysis by the trial court should include, but is not limited to the following factors: (1) how probative is the evidence; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless in an indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent’s need for the evidence.  Reese v. State, 33 S.W.3d 238, 240-41 (Tex. Crim. App. 2000).  With regard to the proffered gang testimony, the evidence at issue is not probative, and would necessarily impress the jury in an irrational, indelible manner.
	Should the Court find that the proffered evidence regarding alleged gang association is sufficiently probative to overcome its inherent highly prejudicial effects, the Defendant requests that the Court conduct a Rule 403 balancing tests and put its findings on the record, pursuant to Montgomery v. State, supra., and more particularly under Massey v. State, 933 S.W.2d 582, 588 (Tex. App.-Houston [1st Dist.] 1996), holding that the trial court erred by admitting extraneous offense evidence without making findings under Rule 403.

III.
	Defendant further objects to the introduction of any evidence of his supposed gang affiliations or connections under Rule 404(b), Texas Rules of Evidence, holding that evidence of other crimes or acts of a person is not admissible to prove a person’s character to show that the person acted in conformity with that supposed character. Should the Court find that the proffered gang testimony is relevant as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, Defendant requests that the Court state on the record the purpose for which the evidence is being offered by the proponent and admitted by the Court, pursuant to the rule of Montgomery, supra.
	Pursuant to Rankin v. State, 974 S.W.2d 707, 711 (Tex. Crim. App. 1996), Defendant requests that, should the Court find the proffered evidence to be admissible under Rule 404(b), that the Court submit the proper limiting instruction under Rule 105(a), Texas Rules of Evidence.
	WHEREFORE, the Defendant prays the Court grant this motion.

Respectfully submitted,

                                                                 

CERTIFICATE OF SERVICE
	I hereby certify that a true and correct copy of the above and foregoing Motion to Exclude Testimony of Defendant’s Alleged Gang Affiliations was hand-delivered, faxed, mailed, to the office of the CrimDA/CtyAtty of _______ County, Texas on the _____ day of _______, 200__.

CAUSE NO.  

THE STATE OF TEXAS

V.

§	IN THE 
§
§	OF
§
§	 COUNTY, TEXAS
ORDER

On this day, came on to be heard, Defendant's Motion to Exclude Testimony of
Defendant's Alleged Gang Affiliations and it appears to the Court that is Motion should be and it hereby is:

                                                  	GRANTED

                                                    	DENIED

	SIGNED this                        day of .

							JUDGE PRESIDING