Appellant was indicted for the May 29, 1999, murder of Rick Marin during the course of committing or attempting to commit robbery. Marin, a resident of San Antonio, was reported missing on May 30, 1999. His charred Ford Mustang was found on May 31, 1999, with the engine, transmission, tail lights, and radio missing. Marin's badly burned and decomposed body was found in another area of town on June 4, 1999. The cause of death was determined to be shotgun blasts.

SUFFICIENCY OF THE EVIDENCE

In his eighth point of error, appellant asserts that the evidence is legally insufficient to support the jury's verdict that he murdered Marin in the course of robbery or attempted robbery. Appellant does not dispute that the evidence is sufficient to show that he murdered Marin, but argues that there is no evidence to show he did so with the intent to commit robbery. In reviewing the legal sufficiency of the evidence, this Court looks at all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979).

Manuel Torres, a life-long friend of appellant, testified that his neighbor, Ramon Martinez, had a Mercury Cougar in his back yard and that it did not have an engine. In the late spring of 1999, Martinez mentioned to Torres that he was interested in obtaining one. Torres told Martinez that he knew someone who could help him find one and contacted appellant. Appellant then met with Torres and Martinez at Martinez's house and told Martinez he could get an engine for him if he was willing to pay for it. Approximately two weeks later, Torres witnessed appellant arriving at Martinez's house with a car engine and assorted car parts. He helped appellant unload the engine and parts.

On direct examination, Torres stated that he asked where appellant got the engine and appellant replied that he had seen a Ford Mustang on the south side of the city, stolen it, stripped some of the parts, and removed the engine. He then abandoned the car and burned it. However, on cross-examination, Torres stated that appellant had not admitted to stealing the car or burning it.

On re-direct examination, after he was confronted with his statement to police and after the prosecutor warned him that one could get into trouble for lying under oath, Torres reluctantly conceded that appellant had, in fact, told Torres that he had stolen the car and burned it.

Martinez testified that, at the suggestion of Torres, he met with appellant in April or May of 1999 to discuss the possibility of appellant obtaining an engine for Martinez's Mercury Cougar. Appellant told Martinez that he could get a Ford Mustang 5.0-liter engine for $800. Martinez agreed to the price.

A few days later, appellant went to Martinez's house after work, and the two discussed guns. Appellant learned that Martinez owned a 12-gauge shotgun. Appellant mentioned an upcoming gun show, and the two made plans to attend. After attending the gun show, Martinez purchased a .22-caliber rifle and accompanied appellant to a ranch owned by appellant's mother to shoot the gun. A few weeks later, appellant approached Martinez and asked to borrow his shotgun. When Martinez refused, appellant asked to borrow $100 so that he could retrieve his shotgun from a pawn shop. Martinez loaned appellant the money, but maintained he did not know what appellant planned to do with the shotgun. About a month later, appellant appeared at Martinez's workplace. He was driving a pick-up truck with a Ford Mustang 5.0-liter engine in the bed. Appellant delivered the engine to Martinez's house, and Martinez paid appellant for it in cash.

Family members informed him that, while he had been at the police station, a search warrant had been executed at his house. During his questioning, Martinez told police where his guns were and gave his consent for police to retrieve them. Tests on the weapons revealed that they had not been used in the murder in this case. The charges against Martinez for receiving stolen property were later dropped. Martinez acknowledged on the stand that he should have come forward and told police what he knew about Marin's death but was afraid to get involved.

Anthony Rodriguez testified that he had met appellant in 1998 while incarcerated in the Bexar County Jail and that the two had become friends. In May of 1999, appellant went to Rodriguez's apartment and asked whether Rodriguez wanted to earn some money. Rodriguez said that he did and accompanied appellant to Martinez's house. While there, Martinez asked appellant whether he could obtain a Ford Mustang 5.0-liter engine. Appellant replied that he could and that the cost would be $1,000.

A few weeks later, appellant told Rodriguez that he had seen a Ford Mustang with a 5.0-liter engine in the parking lot of Rodriguez's apartment complex and said that he wanted to steal it. His plan was to pull the owner of the car into Rodriguez's apartment, shoot her, and steal the car. Rodriguez testified that he was shocked by this idea and refused to go along with appellant's plan.

The next day, Rodriguez went with appellant to Martinez's house. Appellant said that he was going there to borrow money from Martinez to get his shotgun out of a pawn shop. Appellant and Rodriguez then went to the Westside Pawn Shop, where appellant paid what he owed to retrieve his shotgun and filled out some paperwork. The clerk told appellant it would be three working days before he could pick up the shotgun because of federal regulations.

The day before Marin's murder, appellant told Rodriguez he had a new idea about how to steal a Ford Mustang. He said that he planned to flag down a Ford Mustang near Palo Alto College, shoot the driver, put the driver in the back seat, and drive away with the car. Rodriguez testified appellant said, "I'm going to fucking shoot him, and I'm not giving the guy a chance." Rodriguez said he wanted nothing to do with the plan and ignored appellant's phone calls the following day.

A few days later, appellant went to Rodriguez's apartment and asked Rodriguez if he wanted to "hang out." Rodriguez said he did, and the two went to Martinez's house. While there, appellant showed Rodriguez the 5.0-liter engine and said, "Remember what we were supposed to do Saturday? I did it. I got the motor." After leaving Martinez's house, appellant and Rodriguez went to the home of appellant's girlfriend. The two watched the ten-o'clock news with appellant's girlfriend. One of the stories on the news was about Marin's disappearance. Rodriguez testified that, after seeing the news story, appellant became "shaky" and told Rodriguez, "That shit we were watching right now, I - I did it."

The testimony of Torres, Martinez, and Rodriguez, detailing appellant's own statements regarding his intent to steal Marin's car, is sufficient evidence for a jury to find appellant intended to rob Marin of his vehicle. Appellant's eighth point of error is overruled.

In appellant's ninth point of error, he alleges that the evidence is factually insufficient to support the jury's verdict of guilt. In a factual-sufficiency review, the appellate court views all the evidence without the prism of "in the light most favorable to the prosecution" and, as we recently said in Zuniga v. State, __ S.W.3d__, ___, No. 539-02 (Tex. Crim. App., delivered April __, 2004, slip op. at __), will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Id. A verdict is clearly wrong and unjust if the jury's finding is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).

Appellant points out that there were no witnesses to the robbery or murder, and that the complainant's burned, decomposed body was found in one area of town on June 4, while the complainant's burned car was found in another area of town on May 31. He suggests that, since the body was found in one part of town several days after the stolen car was found in another part of town, there is no proof the murder was committed with the intent to obtain control of the car. Nevertheless, appellant offered no evidence to refute the state's contention that he murdered Marin in the course of committing or attempting to commit robbery. Thus, the same facts that make the evidence legally sufficient also make it factually sufficient. The evidence supporting the verdict was not so weak as to be clearly wrong and manifestly unjust, nor was the contrary evidence so strong that the standard of proof, beyond a reasonable doubt, could not have been met. See Zuniga, __ S.W.3d at __, slip op. at ___. Appellant's ninth point of error is overruled.

In his first point of error, appellant claims that the trial court erred by overruling his objection to the prosecutor's comment on appellant's failure to testify. The prosecutor made the following argument at the guilt or innocence phase of trial:

You don't excuse somebody's behavior who's capable of doing this type of things [sic], just because we don't have an eyewitness at the moment the crime occurred. Criminals commit crimes in instances and circumstances where they think they're not going to get caught. But you know what? He messed up. He left too many trails. Too many pieces of evidence to link him to this crime, and he can't get out of it. And what he's trying to do today is what he tried to do for the seventeen months he escaped law enforcement. He's hiding from the truth. And you don't reward him for that.

A prosecutor may not comment on the failure of an accused to testify. Such comment violates the privilege under the Fifth Amendment of the United States Constitution and Article I, § 10, of the Texas Constitution against self-incrimination and the freedom from being compelled to testify against oneself. Griffin v. California, 380 U.S. 609 (1965); Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim. App. 2001). "To violate the right against self-incrimination, the offending language must be viewed from the jury's standpoint and the implication that the comment referred to the defendant's failure to testify must be clear." Bustamante, 48 S.W.3d at 765. For reversal to be warranted, the language used must have been manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify. Id.

The prosecutor's argument here was not a direct comment on appellant's failure to testify, nor would the jury necessarily take it as such. The evidence at trial showed that appellant took great pains to cover up his crime by dumping and burning the victim's body in one location and dumping and burning the victim's car in another. He remained free for seventeen months after the murder. The jury could have logically concluded that the prosecutor's comment referred to the actions appellant took to elude authorities. At most, the prosecutor's reference to hiding from the truth "today" was an implication or an allusion to appellant's failure to testify. Even so, it does not rise to the level of reversible error. Cannon v. State, 691 S.W.2d 664, 677 (Tex. Crim. App. 1985), cert. denied, 474 U.S. 1110 (1986) (indirect allusion that might refer to appellant's failure to testify does not require reversal). Appellant's first point of error is overruled.

In his second and third points of error, appellant argues that the trial court erred in failing to submit to the jury an instruction on whether Ramon Martinez and Anthony Rodriguez were accomplice witnesses.

An accomplice is one who, before, during, or after its commission, participates in an offense to the extent that he can be charged with the offense or a lesser-included offense. Blake v. State, 971 S.W.2d 451, 454-455 (Tex. Crim. App. 1998). In other words, an accomplice is a legally culpable participant in an offense. Id. Mere presence at the commission of an offense, knowledge of its commission, failure to disclose it, or even concealing it, does not make one an accomplice. Id. An affirmative act intended to promote the offense is required. Kutzner v. State, 994 S.W.2d 180, 188 (Tex. Crim. App. 1999). Complicity with an accused in the commission of a separate offense does not make a witness an accomplice in the offense for which the accused is on trial. Id.

As detailed in the previous points of error, neither Martinez nor Rodriguez acted to promote the commission of the capital murder in this case. Rodriguez knew that appellant might commit an offense, but did not assist him in any way and is, therefore, not an accomplice. Although both Martinez and Rodriguez knew of the crime after its commission, this does not make them accomplices. The trial court correctly denied appellant's request to include accomplice-witness instructions in the jury charge. Appellant's second and third points of error are overruled.

In his fourth point of error, appellant asserts that the trial court erred by allowing the state to impeach Torres with his statement to police as a prior inconsistent statement, in violation of Rule of Evidence 613. Specifically, he argues that, when the state showed Torres his statement to refresh his memory, the state was actually trying to admit Torres's entire statement into evidence. He contends that the state's actions were improper because the state was attempting to present otherwise inadmissible evidence that appellant shot the victim. He argues that the trial court erred by allowing the statement into evidence because it allowed the state to get that information in front of the jury "through the back door." Appellant's argument is without merit; Torres's statement was never offered nor admitted into evidence at trial. Appellant's fourth point of error is overruled.

In his fifth point of error, appellant asserts that the trial court erred in overruling his objections to the admissibility of fourteen autopsy photographs. Specifically, he claims that the probative value of the photographs was substantially outweighed by unfair prejudice, in violation of Rule of Evidence 403.

The admissibility of photographs is governed by Rule 403 of the Texas Rules of Evidence which states:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

See Long v. State, 823 S.W.2d 259, 271-72 (Tex. Crim. App. 1991), cert. denied, 505 U.S. 1224 (1992). Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990); see also Jones v. State, 944 S.W.2d 642, 651-52 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 832 (1997); Long, 823 S.W.2d at 271. The trial court's decision will not be disturbed on appeal unless it falls outside the zone of reasonable disagreement. Jones, 944 S.W.2d at 651-52; Montgomery, 810 S.W.2d at 391.

A court may consider many factors in determining whether the probative value of photographs is substantially outweighed by the danger of unfair prejudice. These factors include: the number of exhibits offered, their gruesomeness, their detail, their size, whether they are in color or black and white, whether they are close-up, and whether the body depicted is clothed or naked. Jones, 944 S.W.2d at 651-52. A court, however, should not be limited by this list. The availability of other means of proof and the circumstances unique to each individual case should also be considered. Id.

Appellant unsuccessfully objected to the admission of state's Exhibits 99, 100, 101,109, 110, 114, 115, 116, 117, 120, 121, 122, 123, 124, and 149. The state withdrew its proffer of Exhibit 101, and it was not admitted into evidence. All of the photographs are 8" by 10" in size and are in color. Exhibit 99 depicts Marin's charred body as it was when it was brought into the medical examiner's office from the crime scene. Exhibit 100 shows a closer view of Marin's back, which showed maggot infestation. Exhibit 109 is a photograph of Marin's upper back and the back of his skull. Exhibit 110 is a photograph of Marin's body from his skull to his knees. Exhibit 114 depicts Marin's thighs and shows the absence of his legs from the knees down. Exhibit 115 depicts Marin's lower torso to his knees. Exhibit 116 is a photograph of the victim's torso. Exhibit 117 is a photograph depicting Marin's feet, which were detached from the rest of his body. Exhibits 120, 121, 122, 123, and 124 are photographs of different bone fragments. Exhibit 149 depicts two x-rays showing the location of the shotgun pellets in Marin's body.

The photos are relevant because they accurately reflect the state of Marin's body when it was discovered and the injuries inflicted upon him. None of the photographs are especially large, and all were taken from different angles. Although most of the photographs depict maggot infestation, we will not consider them overly gruesome simply because they show the body in a state of decomposition. Madden v. State, 799 S.W.2d 683, 696-97 (Tex. Crim. App. 1990), cert. denied, 499 U.S. 954 (1991)(citing Knoppa v. State, 505 S.W.2d 802 (Tex. Crim. App. 1974)(holding photographs admissible despite the presence of decomposition and maggots)). The photographs were relevant, and their probative value was not substantially outweighed by any unfair prejudice. Thus, the trial court did not err in overruling appellant's objections to their admissibility. Appellant's fifth point of error is overruled.

EVIDENCE OF GANG AFFILIATION

In his sixth point of error, appellant claims that the trial court erred by admitting, at the punishment phase of trial, evidence regarding appellant's gang affiliation. He contends that the evidence was not relevant and its admission violated his First Amendment right to free association.

With respect to relevancy, evidence of gang membership is relevant at the punishment phase of trial to show future dangerousness. Mason v. State, 905 S.W.2d 570, 577 (Tex. Crim. App. 1995), cert. denied, 516 U.S. 1051 (1996). To be admissible, the state must prove that a specific gang engages in violent or illegal activities and that the defendant is a member of that gang. Id. Likewise, regarding the right to free association, the state is not precluded from introducing evidence of a defendant's gang membership as long as it shows that the gang in question is prone to violent activities. Fuller v. State, 829 S.W.2d 191, 196 (Tex. Crim. App. 1992), cert. denied, 508 U.S. 941 (1993). The reasoning is that, because organizational activities with illegal aims are not protected by the First Amendment, neither is membership in such organizations. Id.

Deputy Jimmy Pearson testified that he was employed in the classification department of the Bexar County Jail and that he met with appellant at the jail in September of 1995. The purpose of the meeting was to determine the best placement for appellant in the jail. Pearson testified that it was important to separate rival gang members in the jail to eliminate possible violence between warring gang members. To that end, appellant signed an "acknowledgment of gang affiliation" and admitted his membership in the "Big Time Kings." He told Pearson that his street name was "Redrum" and listed his gang enemies as "The Raiders, L.A. Boyz, Ambrose, Cribbs, Crips, 'Tepa,' and Bad Company."

Detective Rocky Dyer testified that he had been a San Antonio police officer for fifteen years, that during most of that time he had been assigned to gang units and that, between 1989 and the trial, he had completed over 300 hours of advanced gang-investigator study. He further testified that he was President of the Texas Gang Investigators Association, taught courses in gang investigation to other officers, and was very familiar with the gangs in San Antonio. He testified that the Big Time Kings are the largest street gang in San Antonio and were involved in "just about everything you could imagine. All the way from petty thefts, all the way up to capital murder, robberies, burglaries, drive-by shootings, aggravated assaults." He went on to say that enemies of the Big Time Kings included LA Boys, Bad Company, and Ambrose, among others.

The state established that appellant is a member of a gang and that the gang to which he belongs engages in violent and illegal activities. Therefore, evidence of appellant's gang membership was relevant to a special issue. The admission of this evidence did not violate his right to free association. Fuller, supra. The trial court did not err in admitting evidence of gang affiliation. Appellant's sixth point of error is overruled.

In his seventh point of error, appellant argues that the trial court erred by admitting victim-impact evidence at the punishment phase of trial, in violation of Rule of Evidence 403. Specifically, he claims that the state improperly engaged in a comparison of worth between appellant and Marin and that the sheer volume of the evidence was more prejudicial than probative.

Victim-impact and character evidence is admissible to show the uniqueness of the victim, the harm caused by the defendant, and as rebuttal to the defendant's mitigating evidence. Mosley v. State, 983 S.W.2d 249, 262 (Tex. Crim. App. 1998), cert. denied, 526 U.S. 1070 (1999). Rule 403 limits the admissibility of this evidence when the evidence encourages comparisons based upon the greater or lesser worth or morality of the victim. Id. When the focus of the evidence shifts from humanizing the victim and illustrating the harm caused by the defendant to measuring the worth of the victim compared to other members of society, the state exceeds the bounds of permissible testimony. Id. Considerations in determining whether testimony should be excluded under Rule 403 include the nature of the testimony, the relationship between the witness and the victim, the amount of testimony to be introduced, and the availability of other testimony relating to victim impact and character. Id. Mitigating evidence introduced by the defendant may also be considered in evaluating whether the state may subsequently offer victim-related testimony. Id.

The state called several members of Marin's immediate family to testify: his brother, Steven, his sister, Michelle, his father, Raul, and his mother, Vicci. Appellant did not object during any portion of the testimony of Steven or Michelle. Thus, he has forfeited his right to appeal as to these witnesses. Tex. R. App. P. 33.1.

Nothing in the record suggests that the state engaged in a comparison of the worth of appellant and Marin. The testimony came from immediate family members who related the uniqueness of Marin's character and the impact of his death on his family. Further, neither the tenor nor the volume of the evidence is such that it is unfairly prejudicial, nor would any prejudice resulting from the evidence substantially outweigh its probative value. Appellant's seventh point of error is overruled.

We affirm the judgment of the trial court.

Johnson, J.

En banc

Delivered: April 21, 2004

Do Not Publish

1. Unless otherwise indicated, all references to articles refer to the Texas Code of Criminal Procedure.

2. Presumably, this refers to the vacant lot where Marin's charred vehicle was found.

3. Raul's daughter's birthday is May 28, one day before Marin's death occurred.

4. Marin's sister, Michelle, was pregnant at the time of trial.