Third Court of Appeals, Austin, Texas

Case Number: 03-16-00658-CR

Judge: David Puryear

Court: TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

Plaintiff's Attorney: Ms. Nancy L. Nicolas
The Honorable Margaret M. Moore
The Honorable Stacey M. Soule

Defendant's Attorney: Linda Icenhauer-Ramirez

Description: 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.
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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
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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
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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
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“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.2
As support for his argument that the evidence is relevant, Johnson refers to various cases2 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”). 6
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
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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
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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.3
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
The two witnesses that Johnson called to the stand—J.T. and M.R.—both provided3 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. 9
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.”
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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
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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 4
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 the4 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. 12
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.

Outcome: Having overruled Johnson’s sole issue on appeal, we affirm the district court’s
judgments of conviction.

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