Opinion
NO. 03-16-00658-CR
01-11-2018
Patrick Johnson, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NO. D-1-DC-13-300670 , HONORABLE DAVID CRAIN, JUDGE PRESIDING MEMORANDUM OPINION
Patrick Johnson was charged with aggravated sexual assault of a child, indecency with a child by sexual contact, and indecency with a child by exposure. See Tex. Penal Code §§ 21.11(a)(1)-(2), 22.021(a) (setting out elements of offenses of aggravated sexual assault and indecency with child). The indictment also contained an enhancement paragraph alleging that Johnson had been previously convicted of three felony offenses. See id. § 12.42 (enhancing punishment ranges for repeat felony offenders). At the end of the guilt-or-innocence phase, the jury found Johnson guilty of the three offenses. At the end of the punishment phase, the jury found the enhancement allegations to be true and assessed Johnson's punishment at life imprisonment for the aggravated-sexual-assault charge, seventy-five years' imprisonment for the indecency-by-contact charge, and twenty years' imprisonment for the indecency-by-exposure charge. The district court rendered its judgments of conviction in accordance with the jury's verdicts. On appeal, Johnson challenges the district court's ruling prohibiting him from introducing evidence that the victim, C.S., belonged to a gang. We will affirm the district court's judgments of conviction.
The indictment originally alleged two counts of aggravated sexual assault, but the State abandoned the second count before the charge was given to the jury. The jury charge did not mention the allegations regarding the abandoned count.
BACKGROUND
Johnson was charged with aggravated sexual assault of a child and with two counts of indecency with a child. See Tex. Penal Code §§ 21.11(a)(1)-(2), 22.021(a). The alleged victim, C.S., lived in Johnson's neighborhood, and the indictment alleged that C.S. was under fourteen years of age at the time of the offenses. During the trial, the State called several witnesses, including C.S.; J.S., who is the victim's mother; and Officer Brent Kelly, who investigated the allegations and testified as an outcry witness. In his testimony, C.S. asserted that he and several of his friends would hang out at Johnson's home while they were teenagers, that Johnson gave them drugs and alcohol while they were at the house, that Johnson performed oral sex on him multiple times when he was between the ages of twelve and sixteen years old, that Johnson would sometimes give him money and drugs after the encounters, and that he needed the money that Johnson gave him. In addition, recordings of phone calls between Johnson and C.S. and between Johnson and another individual were admitted into evidence and played for the jury. During his case in chief, Johnson elected to testify and also called J.T. and M.R. to the stand. M.R. was roughly the same age as C.S., and J.T. was a few years older. The undisputed evidence presented during the trial established that C.S., M.R., J.T., and several other teenage boys spent large amounts of time at Johnson's home and that some of them lived with Johnson for extended periods of time.
While C.S. was on the stand but outside the presence of the jury, Johnson asserted that he wanted to introduce into evidence testimony establishing that C.S. was a member of a gang in order to attack C.S.'s credibility. More particularly, Johnson referred to the portion of C.S.'s testimony in which he explained that he needed the money that Johnson gave him after the sexual encounters, and Johnson stated that he wanted to impeach this testimony by questioning C.S. about whether he was "a member of the street gang called . . . the Gangster Disciples" and whether he made money "from being a member of Gangster Disciples." In response, the State argued that the testimony would be irrelevant and that the probative value would be substantially outweighed by the prejudicial nature of the evidence. The parties then questioned C.S. outside the presence of the jury, and C.S. explained that he was not a member of Gangster Disciples but did become a member of the Crips when he was fifteen years old. Further, C.S. denied that he sold drugs to make money while he was a member of the gang. After considering the parties' arguments and the testimony from C.S., the district court sustained the State's objections.
In a later hearing also outside the presence of the jury, Johnson asked the district court to admit into evidence a report regarding an interaction that C.S. had with the police in 2014 in which C.S. was found in possession of a controlled substance and in which C.S. stated that he was a member of "GD (Gangster Disciple) Folk." The officer who prepared the report also noted that C.S. had "multiple gang related tattoos" and had previously been arrested with other known gang members and concluded that C.S. "is now a documented Gangster Disciple criminal street gang member." In addition, Johnson requested that testimony from Officer Clifford Jaeger regarding C.S.'s alleged gang affiliation be admitted into evidence. When discussing why the report and the testimony should be admitted, Johnson argued that he wanted to impeach C.S.'s "testimony that he went over and was having sex with . . . Johnson because he needed the money" by showing "that he had other ways to raise" money. During the hearing, Officer Jaeger testified that he was assigned to the gang unit of the Austin Police Department, that he was familiar with the gangs called the Gangster Disciples and the Crips, that they commonly commit crimes like stealing to get money, and that committing those types of crimes might be required to become members of the gangs. In response, the State renewed its prior objections. When sustaining the State's objections, the district court explained that the evidence "is almost, per se, inflammatory," that "it's not been proved that [C.S.] was a member of . . . the Gangster Disciples," that "it's not—not very strong testimony about the fact that they all have a propensity to commit crimes for . . . economic reasons," and that "there is nothing in there that says because he's a member of the Gangster Disciples or some other gang, that his testimony today is not truthful—is not credible."
After the district court made its rulings, the trial continued. At the end of the guilt-or-innocence phase, the jury found Johnson guilty of all three offenses.
DISCUSSION
In his sole issue on appeal, Johnson argues that the district "court erred when it ruled that [he] could not introduce evidence of the alleged victim's gang membership because that evidence was crucial in testing the alleged victim's credibility."
As discussed previously, the district court sustained the State's objections that the evidence was not relevant and that its probative value was outweighed by the danger of unfair prejudice. Under the Rules of Evidence, "[r]elevant evidence is admissible unless" provided otherwise by "the United States or Texas Constitution," "a statute," the Rules of Evidence, or "other rules prescribed under statutory authority," and "[i]rrelevant evidence is not admissible." Tex. R. Evid. 402. Moreover, "[e]vidence is relevant if . . . it has any tendency to make a fact more or less probable than it would be without the evidence" and if "the fact is of consequence in determining the action." Id. R. 401. In addition, relevant evidence may be excluded "if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." Id. R. 403. Further, in general, "[a] witness may be cross-examined on any relevant matter, including credibility." Id. R. 611(b); see also Holmes v. State, 323 S.W.3d 163, 169 (Tex. Crim. App. 2009) (explaining that "'the right of cross-examination by the accused of a testifying State's witness includes the right to impeach the witness with relevant evidence that might reflect bias, interest, prejudice, inconsistent statements, traits of character affecting credibility, or evidence that might go to any impairment or disability affecting the witness's credibility'" (quoting Virts v. State, 739 S.W.2d 25, 29 (Tex. Crim. App. 1987))).
Appellate courts review a trial court's ruling regarding the admission or exclusion of evidence for an abuse of discretion. See Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). Under that standard, a trial court's ruling will only be deemed an abuse of discretion if it is so clearly wrong as to lie outside "the zone of reasonable disagreement," Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002), or is "arbitrary or unreasonable," State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). Moreover, the ruling will be upheld provided that the trial court's decision "is reasonably supported by the record and is correct under any theory of law applicable to the case." Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). In addition, an appellate court reviews the trial court's ruling in light of the record before the court "at the time the ruling was made." Khoshayand v. State, 179 S.W.3d 779, 784 (Tex. App.—Dallas 2005, no pet.).
In his brief on appeal, Johnson contends that the evidence of C.S.'s alleged gang membership would have impeached C.S.'s "testimony that he allowed [Johnson] to perform oral sex on him in order to get money, drugs, and alcohol from" Johnson, and according to Johnson, the evidence was relevant and "crucial for the jury to hear so that they could test the veracity of" the remainder of [C.S.]'s testimony.
As support for his argument that the evidence is relevant, Johnson refers to various cases in which our sister courts of appeals have commented that evidence that a witness was a member of a gang can bear upon the witness's credibility. However, we believe that Johnson's reliance on those cases is misplaced because in those cases, unlike the present case, the witness and the defendant were both members of the same gang and because the evidence of the witnesses' gang affiliation was offered to impeach the witnesses' credibility by explaining why the witnesses were refusing to provide damaging testimony against members of their gangs. See Bridgewater v. State, 905 S.W.2d 349, 352-53 (Tex. App.—Fort Worth 1995, no pet.) (overruling issue alleging that State was improperly allowed to impeach its own witness regarding his membership in gang with defendant, regarding whether his gang had rule "'that you don't . . . talk against one of your friends,'" and regarding whether witness was afraid that he might be killed for being "'[l]abled as a snitch'" after witness refused to testify against defendant during trial even though witness had previously provided incriminating statements during his own trial); McKnight v. State, 874 S.W.2d 745, 746-47 (Tex. App.—Fort Worth 1994, no pet.) (considering argument that State improperly cross-examined defense witness regarding witness's and defendant's membership in gang, determining that evidence "was sufficiently probative of [witness]'s possible bias in favor of [defendant] to warrant its admission into evidence," and noting Supreme Court case addressing similar situation in which Supreme Court stated that members of gang would lie for one another); Bynum v. State, 731 S.W.2d 661, 663-64 (Tex. App.—Houston [14th Dist.] 1987, no pet.) (upholding trial court's ruling allowing State to question defendant and defense witness regarding their membership in same gang because "evidence was sufficiently probative of [witness]'s possible bias toward" defendant); see also Barlow v. State, 175 S.W.3d 839, 843 (Tex. App.—Texarkana 2005, pet. ref'd) (noting that appellate courts considering issue of relevancy of evidence that witness was gang member have addressed situation in which "the witness was impeached with evidence that the witness and the defendant had common membership in an association whose members were sworn to lie on behalf of each other" because "the testimony would demonstrate a bias in the witness'[s] testimony on behalf of his fellow member").
As an initial matter, we note that it is not entirely clear that the evidence that Johnson sought to admit would bear on C.S.'s credibility in the manner suggested by Johnson. During the hearings held outside the presence of the jury, C.S. expressly denied selling drugs to make money after joining the gang, and although Officer Jaeger generally testified that gangs will commit crimes to collect money and that gangs might require their members to commit crimes, no evidence was presented during the hearings showing that C.S. was actually acquiring money through his alleged participation in the gang or establishing the amount of money acquired. In the absence of this type of evidence, the generalized evidence that C.S. could be receiving some kind of financial benefit from his gang affiliation would not necessarily undermine C.S.'s testimony that he needed the money that Johnson would give him after the sexual encounters. This seems particularly true in this case in light of the fact that C.S. testified that he was using drugs heavily during this time period and that he needed money to buy drugs beyond those that Johnson would sometimes give him. Accordingly, based on the record before this Court, it would seem difficult to conclude that the district court abused its discretion by determining that the evidence was not relevant.
Even assuming for the sake of argument that the evidence sought was relevant to C.S.'s credibility, we note that the district court also determined that the evidence should be excluded under Rule 403. See Tex. R. Evid. 403. When performing a Rule 403 analysis, courts should balance the following factors:
(1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of
the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006) (footnote omitted); see Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010) (explaining that "probative value" refers to how strongly evidence makes existence of fact more or less probable and to how much proponent needs evidence and that "unfair prejudice" considers how likely it is that evidence might result in decision made on improper basis, including emotional one).
On appeal, Johnson contends that "the evidence was extremely probative to show that [C.S.] was lying about his need to obtain money from [Johnson] by engaging in sexual acts with" Johnson. However, as set out above, the probative value of the evidence sought as it pertains to C.S.'s credibility seems minimal.
Regarding whether the evidence was needed, Johnson contends that the evidence was crucial because the "evidence had great potential to assist the jury in their evaluation of [C.S.]'s credibility" and because C.S.'s "testimony was the only evidence which established the elements of the three offenses for which [Johnson] was convicted." However, we believe that Johnson's need for the evidence was limited given that evidence pertaining to C.S.'s credibility was admitted through other testimony. For example, J.S. and C.S. both testified that C.S. had significant behavioral issues and abused drugs for years, which resulted in C.S. being repeatedly placed in a juvenile detention center. Further, J.S. testified that C.S. was not always honest with her about his activities. Moreover, during his testimony, C.S. referred to himself "[a]s a bad kid" who did not want to follow the rules. In addition, C.S. testified that before he made the allegations at issue, Johnson called the police on C.S. on two occasions, which resulted in C.S. being confined at a detention center, and Officer Kelly testified that C.S. related that he was mad at Johnson regarding those arrests when C.S. made his outcry. Finally, C.S. was cross-examined regarding a prior claim of sexual abuse that he made against one of the employees at the juvenile detention center, and C.S. repeatedly testified that he did not remember ever making that allegation; however, a video and audio recording of his conversation with a police officer about the prior allegation was admitted into evidence and played for the jury.
The two witnesses that Johnson called to the stand—J.T. and M.R.—both provided testimony regarding C.S.'s credibility. Although we acknowledge that the two witnesses testified after the district court made its rulings regarding the evidence pertaining to C.S.'s alleged gang membership, we note that J.T. testified that he "never trusted" C.S. and directly contradicted C.S.'s testimony that Johnson gave alcohol and drugs to the boys that he allowed to hang out at his home and that M.R. related that C.S. asked M.R. to help C.S. "set up" Johnson by making false allegations of sexual misconduct.
Turning to the remaining factors, Johnson contends that those factors do not weigh in favor of exclusion. In particular, Johnson notes that the length of the hearings held outside the presence of the jury demonstrates that he would not have needed much "time to develop this evidence." Although the record indicates that the evidence sought would not have taken an inordinate amount of time to develop, that the evidence would likely not have confused the jury or distracted them, and that the evidence would not have been given any undue weight because the jury would not have been able to properly evaluate the evidence, see Gigliobianco, 210 S.W.3d at 641 (explaining that scientific evidence is type of evidence that might mislead jury not properly equipped to consider probative value), the district court could have determined that the evidence had the potential to encourage a decision on an improper basis, see id. (stating that evidence might encourage decision on improper basis if it arouses jury's "hostility or sympathy" without regard to logical probative force of evidence), because evidence that a witness is a member of a gang "is highly prejudicial," see Barlow v. State, 175 S.W.3d 839, 844 (Tex. App.—Texarkana 2005, pet. ref'd); see also Galvez v. State, 962 S.W.2d 203, 206 (Tex. App.—Austin 1998, pet. ref'd) (noting that "gang membership is highly inflammatory character evidence").
In light of the prejudicial nature and the limited need and probative force of the evidence pertaining to C.S.'s alleged membership in a gang, we must conclude that the district court did not abuse its discretion by sustaining the State's objection that the evidence should be excluded under Rule 403. See Tex. R. Evid. 403; Barlow, 175 S.W.3d at 844-45.
Furthermore, although we need not address the matter further, we do not believe that Johnson would be able to establish that the alleged error resulted in the requisite degree of harm needed to reverse the conviction. In general, "the erroneous admission or exclusion of evidence is nonconstitutional error governed by rule 44.2(b) if the trial court[']s ruling merely offends the rules of evidence." Crockett v. State, No. 02-11-00185-CR, 2012 WL 2135599, at *2 (Tex. App.—Fort Worth June 14, 2012, pet. ref'd) (mem. op., not designated for publication). For nonconstitutional errors in criminal cases, the error must be disregarded unless it affected the defendant's substantial rights. See Tex. R. App. P. 44.2(b). A substantial right is not affected "when, after examining the record as a whole, the reviewing court has a fair assurance that the error did not influence the jury or had but a slight effect." McDonald v. State, 179 S.W.3d 571, 578 (Tex. Crim. App. 2005). "In assessing the likelihood that the jury's decision was adversely affected by the error, the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case." Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). "The reviewing court may also consider the jury instructions, the State's theory and any defensive theories, closing arguments and even voir dire, if applicable." Id. at 355-56.
As set out above, Johnson was able to present evidence more directly questioning C.S.'s credibility than the excluded evidence would have been able to, including eliciting testimony suggesting that C.S. made the outcry in response to Johnson calling the police on C.S. Moreover, Johnson presented this defensive theory during his opening and closing statements and through his questioning of the witnesses.
In addition, significant evidence of Johnson's guilt was presented during the trial. See id. at 358 (explaining that "the evidence of the defendant's guilt is a factor to be considered in any thorough harm analysis"). During his testimony, C.S. testified that a friend took him to Johnson's house when C.S. was looking for marijuana, that C.S. made subsequent trips to Johnson's house for more drugs, that C.S.'s friends would hang out at Johnson's home "almost every other day," and that Johnson would give C.S. and his friends drugs and alcohol. Moreover, C.S. stated that one time when he was at Johnson's house and when none of his friends were there, he got high on marijuana and some pills and that Johnson began touching his chest and stomach. Next, C.S. stated that Johnson touched C.S.'s penis over his clothes, pulled C.S.'s pants down, and "gave [C.S.] oral sex." Furthermore, C.S. related that "[m]ore than a hundred" similar sexual interactions occurred from the time that he was twelve until he was "about 16" and that he was under the influence of some type of drug every time. Moreover, C.S. explained that after he ran away from the juvenile detention center and was living on the streets, Johnson began giving him money or marijuana after these sexual interactions. In addition, C.S. testified that he believed that Johnson was also having sex with M.R. because Johnson and M.R. both told him that.
After C.S. finished his testimony, the outcry witness, Officer Kelly, was called to the stand and provided testimony similar to that of C.S. In particular, Officer Kelly explained that during his interview with C.S., C.S. stated that Johnson put "his mouth on [C.S.]'s penis," that these incidents started when C.S. was thirteen years old and continued until he was fifteen years old, that it happened "over a hundred times," and that "Johnson would provide [C.S.] oral sex in return for giving [C.S.] either money or beer or cigarettes, synthetic marijuana, et cetera." Furthermore, Officer Kelly related that he asked C.S., who was fifteen at the time, to call Johnson to see if Johnson would admit to any misconduct, and a recording of that conversation was played for the jury. On the recording, C.S. asks Johnson if they are going to have oral sex like the last time that they hung out at Johnson's place, and Johnson repeatedly tells C.S. to not talk about that topic "on the phone" before stating that it will happen "later on," that they can do "whatever," and that it was up to C.S. whether any sexual conduct happened. Moreover, a recording of a conversation that Johnson had while he was in jail was also played for the jury. On the recording, Johnson commented that it was wrong that he was going to prison for giving "blow jobs" and for "sucking dick" when there are really sick individuals out in the world, referenced the seventeen year olds at the jail, mentioned his desire to read some of those individuals bedtime stories, and stated that some of them looked "appetizing."
During the trial, Johnson testified that he had a medical procedure done on the day of the phone call and that he was under the influence of various medications following that procedure. However, on the recording, Johnson responded to questions normally and without delay, sounded coherent, and exhibited no signs of an altered mental state. Moreover, Johnson admitted that the doctor authorized him to drive home that day and thought he had the mental capacity to drive home.
Furthermore, although both J.T. and M.R. denied that Johnson ever initiated any sexual contact with them while they were at Johnson's home, M.R. later admitted during his cross-examination that he had sexual intercourse with Johnson when he was seventeen years old, that Johnson would perform oral sex on him, that he told C.S. about the sexual encounters, and that Johnson gave him money every month. In his testimony, Johnson stated that M.R. "was like my son" and that he allowed M.R. to move into his home, but Johnson later admitted that he started having sex with M.R. when M.R. turned seventeen and that he paid M.R. $300 a month.
In light of the entirety of the record and in light of the limited probative value of the excluded evidence, we have a fair assurance that any error caused by the exclusion of the evidence did not influence the jury and, accordingly, cannot conclude that the exclusion affected Johnson's substantial rights.
For all of these reasons, we overrule Johnson's sole issue on appeal.
CONCLUSION
Having overruled Johnson's sole issue on appeal, we affirm the district court's judgments of conviction.
/s/_________
David Puryear, Justice Before Justices Puryear, Field, and Bourland Affirmed Filed: January 11, 2018 Do Not Publish