Can Facebook Be Used in Criminal Sentencing?

Under Texas criminal law, a judge or jury may consider a defendant’s gang affiliation when determining a sentence. Gang membership is relevant as evidence of a defendant’s overall character. But what about a situation where the prosecution cannot show the defendant belonged to a specific gang, but nevertheless acted in a manner consistent with gang membership?

Court of Criminal Appeals: Portraying Yourself as a Gang Member Is Relevant “Character” Evidence

The Texas Court of Criminal Appeals recently addressed this question. In Beham v. State, a jury convicted the defendant of aggravated robbery. Specifically, the defendant held up a hotel clerk in December 2013. During a sentencing hearing before a jury, the prosecution introduced into evidence photographs posted by the defendant to his Facebook page. These pictures included the defendant “displaying what appear to be gang-related signs” and “wearing red clothing and accessories.” In one picture, the words, “Money, Power, Respect” are displayed in a “large, Gothic font.”

A police detective who specializes in “gang activity” testified at the defendant’s hearing. Based on his experience, the detective said the images the defendant posted meant he was “holding himself out to be” a member of a gang. However, neither the detective nor the prosecution could identify a specific gang the defendant to which the defendant belonged. The sentencing judge nevertheless admitted the photographs and the detective’s testimony as evidence of the defendant’s character.

The jury ultimately sentenced the defendant to 40 years in prison. An intermediate appeals court reversed this sentence, holding the trial judge abused his discretion by considering the state’s “gang-related evidence.” The prosecution then sought review with the Court of Criminal Appeals, which in a September 12, 2018, opinion, overruled the intermediate court and reinstated the trial judge’s original 40-year sentence.

The Court of Criminal Appeals explained there was nothing wrong with allowing the detective to testify as to his knowledge regarding the factors “commonly associated with gang membership.” Based on this, it was “rational” for the jury to “conclude that one who willfully displays these indicators on his social media profile is more likely…to be holding himself out as a gang member.” And even if the defendant was not actually in a gang, holding himself out as one is relevant to an assessment of his character for purposes of sentencing.

The Court emphasized, however, that in cases where the state alleges a defendant belongs to a particular gang, it is still necessary under Texas law to provide “some showing of the group’s violent or illegal activities” during a sentencing hearing. But in this case, the evidence heard by the jury only extended to the defendant “portraying” himself as a gang member. Under these specific circumstances, the Court said the defendant’s sentencing was proper.

Speak with a Houston Criminal Defense Lawyer Today

Aside from the obvious lesson here–don’t post anything on your Facebook page that may be used against you by prosecutors–you should always work with a qualified Houston criminal defense attorney if you are facing the possibility of decades in prison. Contact the Law Offices of Tad Nelson & Associates by calling (281) 280-0100 , if you need immediate legal advice or assistance.