Jonnie Ray Johnson v. State

NUMBER 13-13-00355-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JONNIE RAY JOHNSON, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 2nd 25th District Court
of Gonzales County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Perkes
Memorandum Opinion by Justice Rodriguez
Appellant Jonnie Ray Johnson challenges his conviction by a jury for robbery.
See TEX. PENAL CODE ANN. § 29.02(a)(1) (West 2011). By one issue, Johnson argues
that the trial court erred in admitting testimony regarding his efforts to resist arrest
because such testimony was irrelevant and inadmissible evidence of an extraneous
offense or bad act. See TEX. R. EVID. 402, 403, 404(b). We affirm.
I. Background1
Johnson was indicted in connection with the robbery of a liquor store in Gonzales,
Texas. See TEX. PENAL CODE ANN. § 29.02(a)(1). He pleaded not guilty, and the case
was tried to a jury.
At trial, there was evidence that Johnson entered the liquor store during the early
evening of January 23, 2012. Johnson tried to enter the area behind the cash register
counter, and the store clerk attempted to block his path. Johnson told the clerk "this is a
robbery," pushed the clerk into a shelf, picked the cash register up off the counter, and
fled the store on foot carrying the cash register. The clerk called the police, and when
they arrived, the clerk pointed in the direction in which Johnson had fled. The police
located Johnson, with the cash register, in the backyard of a house near the liquor store.
The officers testified that Johnson resisted their attempts to arrest him. He struggled
against the officers and would not allow them to handcuff him. The officers testified that
they were required to pepper spray and then use a taser on Johnson in order to subdue
him.
After the close of evidence, the jury returned a guilty verdict. Punishment was
tried to the court, which assessed a sentence of life imprisonment as a result of multiple
prior felonies committed by Johnson. See id. § 12.42 (West Supp. 2012). This appeal
followed.
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Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
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II. Standard of Review
We review a trial court's decision to admit or exclude evidence under an abuse of
discretion standard. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006)
(citations omitted). "If the trial court's decision was within the bounds of reasonable
disagreement, the appellate court should not disturb its ruling." Id.
III. Discussion
By one issue, Johnson argues that the officers' testimony about the details of his
arrest was both irrelevant and inadmissible extraneous bad acts evidence. See TEX. R.
EVID. 401–03, 404(b). However, at trial, defense counsel objected only on the grounds
of relevance, so Johnson's argument under rule 404(b) was not preserved for our review.
See TEX. R. APP. P. 33.1(a)(1). We will address only Johnson's argument under rules
401, 402, and 403.
Rule 402 provides that "[a]ll relevant evidence is admissible, except as otherwise
provided by Constitution, by statute, by these rules, or by the other rules prescribed to
statutory authority. Evidence which is not relevant is not admissible." TEX. R. EVID. 402.
"'Relevant evidence' means evidence having any tendency to make the existence of a
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence." TEX. R. EVID. 401. Rule 403 provides
that, "[a]lthough 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." TEX. R. EVID. 403.
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Johnson argues that "[t]he elements of robbery do not include resisting arrest to
the point of being pepper sprayed or tased. This testimony was completely unnecessary
and irrelevant to the offense of robbery." We disagree.
Texas law has long recognized that evidence of flight or escape may be
admissible evidence from which an inference of guilt may be drawn, subject
only to the requirement of relevancy to the offense under prosecution. See
Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994); Burks v. State,
876 S.W.2d 877, 903 (Tex. Crim. App. 1994); [Cantrell v. State, 731 S.W.2d
84, 92 (Tex. Crim. App. 1987)]; Foster v. State, 779 S.W.2d 845, 859 (Tex.
Crim. App. 1989); Rumbaugh v. State, 629 S.W.2d 747, 752 (Tex. Crim.
App. 1982); Lee v. State, 176 S.W.3d 452, 462 (Tex. App.—Houston [1st
Dist.] 2004), aff'd on other grounds, 206 S.W.3d 620 (Tex. Crim. App.
2006). . . . In addition, the State is generally "'entitled to show
circumstances surrounding an arrest,'" because evidence of these
circumstances, including the defendant's resistance, may also demonstrate
. . . how police located, pursued, and apprehended the defendant. Cantrell,
731 S.W.2d at 92 (quoting Maddox v. State, 682 S.W.2d 563, 564 (Tex.
Crim. App. 1985)).
Burks v. State, 227 S.W.3d 138, 148 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd).
Here, the complained-of testimony was admissible as evidence of the circumstances
surrounding Johnson's arrest. It was evidence relevant to Johnson's flight from the
scene, which was a circumstance indicative of guilt. The testimony encompassed only a
few pages of the multiple-volume reporter's record of a two-day trial and was not
particularly emphasized by the State. In short, having reviewed the testimony in the
context of the record, we conclude that its probative value was not outweighed by any
danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, or
needless presentation of cumulative evidence. The trial court did not abuse its discretion
in admitting the testimony. Johnson's issue is overruled.
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IV. Conclusion
We affirm the judgment of the trial court.
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the 16th
day of January, 2014.
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