John Kelly Forbes v. the State of Texas

IN THE
TENTH COURT OF APPEALS
No. 10-21-00183-CR
No. 10-21-00184-CR
No. 10-21-00185-CR
No. 10-21-00186-CR
JOHN KELLY FORBES,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 443rd District Court
Ellis County, Texas
Trial Court Nos. 45248CR, 45249CR, 45250CR, & 45251CR
MEMORANDUM OPINION
In appellate cause numbers 10-21-00183-CR, 10-21-00184-CR, 10-21-00185-CR, and
10-21-00186-CR, appellant, John Kelly Forbes, challenges his convictions for aggravated
assault of a public servant, evading arrest with a vehicle, tampering with evidence, and
possession of a controlled substance—methamphetamine—in an amount greater than
one gram, but less than four grams, with intent to deliver. See TEX. PENAL CODE ANN. §§
22.02, 37.09, 38.04; see also TEX. HEALTH & SAFETY CODE ANN. § 481.112. We affirm the trial
court’s judgments in appellate cause numbers 10-21-00183-CR, 10-21-00185-CR, and 10-
21-00186-CR. We affirm as modified the trial court’s judgment in appellate cause number
10-21-00184-CR.
Background
On May 4, 2019, Officer Austin Rollins of the Waxahachie Police Department was
on routine patrol near downtown Waxahachie, Texas, when he observed a red Nissan
Altima driven by Forbes make a “really quick right turn” without using his signal.
Believing that the driver of the red Nissan Altima intended to avoid detection, Officer
Rollins followed the vehicle to the parking lot of a closed business. Upon further
inspection, Officer Rollins noticed that the temporary paper license plate on the red
Nissan Altima was expired. Officer Rollins activated the lights on his police cruiser, but
Forbes immediately pulled away and activated his hazard lights. Officer Rollins believed
that Forbes was about to pull over, but as Forbes continued to pass other safe places to
stop, Officer Rollins realized that Forbes was evading and called for backup.
Forbes evaded Officer Rollins and other officers for nearly twenty minutes at low
speeds. Officer Rollins characterized Forbes’s driving during this time as “pretty unsafe”
given that Forbes regularly turned without signaling, ran stop signs, and drove into
oncoming traffic during his escape attempt. Forbes drove into the downtown area where
Forbes v. State Page 2
a Cinco de Mayo festival had drawn large numbers of people. He also drove close to two
officers who were directing traffic for the Scarborough Faire festival.
As he approached Interstate 35, Forbes continued to evade. While Forbes traveled
on Interstate 35 away from town, Officer Rollins observed Forbes throw a plastic bag out
of the window that contained what appeared to be crystal methamphetamine.
Waxahachie Police Officer Danny Knight retrieved the plastic bag and confirmed that the
plastic bag contained a large piece of crystal methamphetamine.
Later, Forbes u-turned on the highway and began driving back towards town.
Police decided to use spike strips to deflate the tires on Forbes’s vehicle. Forbes was able
to drive around the first attempted use of the spike strips. Corporal Andrew Gonzales
and Officer Andrew Smith, both of the Waxahachie Police Department, deployed another
set of spike strips further down the road. Forbes swerved onto the access road to avoid
these spike strips. Believing that he could safely do so, Corporal Gonzales deployed spike
strips on the access road as Forbes drove towards him. Thereafter, Corporal Gonzales
ran up an embankment on the side of the road. Forbes drove up the embankment toward
Corporal Gonzales and hit him.
Officer Rollins testified that Corporal Gonzales was wearing his police uniform at
the time and that Forbes never activated his brakes the entire time he was driving towards
Corporal Gonzales. Furthermore, just before he was struck, Corporal Gonzales heard “a
loud increase of the engines, like somebody was basically smashing down on the
Forbes v. State Page 3
accelerator.” Just prior to being struck, Corporal Gonzales leapt in the air to avoid being
dragged under the car. Corporal Gonzales hit the windshield of Forbes’s vehicle with his
head, breaking the windshield and embedding glass fragments in his forehead and scalp
that his wife was still removing weeks after Corporal Gonzales was discharged from the
hospital. Corporal Gonzales testified that he had bruising all over his body, lacerations
to his head and back, and back and arm pain. He further noted that he had strong vertigo
that kept him from standing and turning his head at first. And at the time of trial,
Corporal Gonzales had lingering back pain and regular migraine headaches that were
triggered by loud noises and bright lights. These migraines made it difficult for him to
attend his children’s events.
After striking Corporal Gonzales, Forbes continued driving up the embankment
into a nearby hotel parking lot. Eventually, police were able to stop and arrest Forbes.
Officer Rollins found a baggie full of smaller baggies, commonly used for packaging,
selling, and transporting drugs, immediately outside Forbes’s vehicle as if he had just
dropped it.
Regarding the collision with Corporal Gonzales, Corporal Rodney Guthrie, also of
the Waxahachie Police Department, noted that Forbes “had every opportunity to stop”
before hitting Corporal Gonzales, but he chose to continue driving up the embankment.
Aric Hagy, a trooper with the Texas Department of Public Safety, conducted an accident
reconstruction. He was unable to determine Forbes’s speed because Forbes never applied
Forbes v. State Page 4
his brakes and there were no skid marks at the scene of the collision. Trooper Hagy
opined that Forbes’s driving was: “At a minimum, reckless.” Officer Rollins, Corporal
Guthrie, and Officer Smith all testified that they observed Forbes’s driving during the
escape and that Forbes’s driving could cause death or serious bodily injury.
Forbes was charged in four separate indictments with aggravated assault of a
public servant, evading arrest with a vehicle, tampering with evidence, and unlawful
possession of a controlled substance—methamphetamine—in an amount greater than
one gram, but less than four grams, with intent to deliver. The cases were consolidated
and tried jointly. Forbes pleaded not guilty before a jury to the charge of aggravated
assault of a public servant and was convicted. Forbes pleaded guilty to the jury on the
remaining three charges. The jury sentenced Forbes to thirty years in prison for
aggravated assault of a public servant; ten years in prison for evading arrest, with a
deadly weapon finding; five years in prison for tampering with evidence; and fifteen
years in prison for possession of a controlled substance with intent to deliver. The
sentences were ordered to run concurrently. Forbes filed a motion for new trial, which
was overruled by operation of law. See TEX. R. APP. P. 21.8(c). The trial court certified
Forbes’s right to appeal in each case, and these appeals followed.
Appellate Cause Number 10-21-00183-CR: Aggravated Assault of a Public Servant
In two issues in appellate cause number 10-21-00183-CR, Forbes challenges the
sufficiency of the evidence supporting his conviction for aggravated assault of a public
Forbes v. State Page 5
servant and contends that the trial court erred by admitting Facebook posts that he
allegedly made.
SUFFICIENCY OF THE EVIDENCE
The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
When addressing a challenge to the sufficiency of the evidence, we consider
whether, after viewing all of the evidence in the light most favorable to the
verdict, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex.
Crim. App. 2017). This standard requires the appellate court to defer “to
the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.” Jackson, 443 U.S. at 319, 99 S. Ct. 2781. We may
not re-weigh the evidence or substitute our judgment for that of the
factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
2007). The court conducting a sufficiency review must not engage in a
“divide and conquer” strategy but must consider the cumulative force of
all the evidence. Villa, 514 S.W.3d at 232. Although juries may not
speculate about the meaning of facts or evidence, juries are permitted to
draw any reasonable inferences from the facts so long as each inference is
supported by the evidence presented at trial. Cary v. State, 507 S.W.3d 750,
757 (Tex. Crim. App. 2016) (citing Jackson, 443 U.S. at 319, 99 S. Ct. 2781); see
also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume
that the factfinder resolved any conflicting inferences from the evidence in
favor of the verdict, and we defer to that resolution. Merritt v. State, 368
S.W.3d 516, 525 (Tex. Crim. App. 2012). This is because the jurors are the
exclusive judges of the facts, the credibility of the witnesses, and the weight
to be given to the testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim.
App. 2010). Direct evidence and circumstantial evidence are equally
probative, and circumstantial evidence alone may be sufficient to uphold a
conviction so long as the cumulative force of all the incriminating
circumstances is sufficient to support the conviction. Ramsey v. State, 473
S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.
Forbes v. State Page 6
We measure whether the evidence presented at trial was sufficient
to support a conviction by comparing it to “the elements of the offense as
defined by the hypothetically correct jury charge for the case.” Malik v.
State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically
correct jury charge is one that “accurately sets out the law, is authorized by
the indictment, does not unnecessarily increase the State's burden of proof
or unnecessarily restrict the State's theories of liability, and adequately
describes the particular offense for which the defendant was tried.” Id.; see
also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The “law
as authorized by the indictment” includes the statutory elements of the
offense and those elements as modified by the indictment. Daugherty, 387
S.W.3d at 665.
Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).
A person commits assault if the person intentionally, knowingly, or recklessly
causes bodily injury to another. TEX. PENAL CODE ANN. § 22.01(a)(1). A person commits
aggravated assault on a public servant if assault is committed as defined in Section 22.01,
and the person uses or exhibits a deadly weapon during the commission of the assault
against a person whom the actor knows is a public servant while the public servant is
lawfully discharging an official duty. Id. § 22.02(a)(1), (b)(2)(B).
As applicable to the offense of aggravated assault on a public servant in this case,
a hypothetically correct jury charge would ask whether Forbes: (1) intentionally,
knowingly, or recklessly; (2) caused bodily injury to Corporal Gonzales, a public servant
lawfully discharging his duty; and (3) used or exhibited a deadly weapon. On appeal,
Forbes only challenges the element of culpable mental state, arguing that the evidence
showed he made every effort to avoid the collision but was unable to.
Forbes v. State Page 7
The court’s charge provided the following definitions for “intentionally,”
“knowingly,” and “recklessly”:
A person acts intentionally, or with intent, with respect to the result of his
conduct when it is his conscious objective or desire to cause the result.
A person acts knowingly, or with knowledge, with respect to the nature of
his conduct or to circumstances surrounding his conduct when he is aware
of the nature of his conduct or that the circumstances exist. A person acts
knowingly, or with knowledge, with respect to a result of his conduct when
he is aware that his conduct is reasonably certain to cause the result.
A person acts recklessly, or is reckless, with respect to the result of his
conduct when he is aware of but consciously disregards a substantial and
unjustifiable risk that the result will occur. The risk must be of such a nature
and degree that its disregard constitutes a gross deviation from the
standard of care that an ordinary person would exercise under all
circumstances, as viewed from the actor’s standpoint.
See TEX. PENAL CODE ANN. § 6.03(a)-(c). Intent may be inferred from circumstantial
evidence, such as the acts, words, and conduct of the defendant. See Guevara v. State, 152
S.W.3d 45, 50 (Tex. Crim. App. 2004); see also Hart v. State, 89 S.W.3d 61, 65 (Tex. Crim.
App. 2002).
The jury could have concluded that Forbes acted intentionally, knowingly, or
recklessly based on testimony that it was apparent the direction Corporal Gonzales was
running, and that Forbes continued to drive in the direction of Corporal Gonzales.
Indeed, Officer Rollins stated that Forbes “just veer[ed] right for [Corporal Gonzales] and
never hit the brakes.” Corporal Gonzales testified that he heard Forbes “basically
smashing down on the accelerator” just prior to hitting him. The testimony also
Forbes v. State Page 8
demonstrated that Forbes had no difficulty in maneuvering his car around spike strips,
construction cones, and other vehicles. Furthermore, Trooper Hagy conducted an
accident reconstruction and noted that he was unable to determine Forbes’s speed
because Forbes never applied his brakes and that Forbes’s driving was: “At a minimum,
reckless.”
In addition, the evidence also showed that Forbes continued driving up the
embankment even after striking Corporal Gonzales. See Dobbins v. State, 228 S.W.3d 761,
765 (Tex. App.—Houston [14th Dist.] 2007, pet. dism’d) (“[A]ppellant’s conduct after
driving the vehicle into Vest also constitutes evidence of his intent to threaten Vest and
his knowledge that his actions would have that result.”); see also Figueroa v. State, 250
S.W.3d 490, 503 (Tex. App.—Austin 2008, pet. ref’d) (noting that evidence of attempting
to flee is admissible and may indicate a consciousness of guilt). Forbes only stopped to
avoid striking another vehicle and because Corporal Guthrie blocked him in with his own
vehicle. Forbes’s efforts to flee after striking Corporal Gonzales further establishes his
intent.
Despite the foregoing, Forbes argues that the dashcam videos and security footage
from a nearby hotel admitted into evidence show that he attempted to avoid hitting
Corporal Gonzales. We do not believe that the videos clearly support Forbes’s
contention. Nevertheless, the jurors are the exclusive judges of the facts, the credibility
of the witnesses, and the weight to be given to the testimony. See Montgomery v. State,
Forbes v. State Page 9
369 S.W.3d 188, 192 (Tex. Crim. App. 2012); see also Green v. State, 607 S.W.3d 147, 152
(Tex. App.—Houston [14th Dist.] 2020, no pet.). Furthermore, the jury may choose to
believe or disbelieves all or part of a witness’s testimony, and, to the extent conflicts in
the evidence exist, we presume the jury resolved any conflicts in the evidence in favor of
the prevailing party. See Marshall v. State, 479 S.W.3d 840, 845 (Tex. Crim. App. 2016)
(“We defer to the jury’s finding when the record provides a conflict in the evidence.”); see
also Green, 607 S.W.3d at 152.
For the foregoing reasons, we hold that the evidence was sufficient to support
Forbes’s conviction for aggravated assault of a public servant. See TEX. PENAL CODE ANN.
§ 22.02(a)(1), (b)(2)(B); see also Zuniga, 551 S.W.3d at 732-33. Accordingly, we overrule
Forbes’s first issue in appellate cause number 10-21-00183-CR.
ADMISSION OF THE FACEBOOK POSTS
In his second issue, Forbes argues that the trial court erred by admitting Facebook
posts he allegedly made. Specifically, Forbes complains that the Facebook posts were not
authenticated properly; the probative value of the posts is substantially outweighed by
the danger of unfair prejudice; the posts were not relevant; and the posts were a “back-
door” violation of his Fifth Amendment right to not testify.
Standard of Review
We review a trial court’s admission or exclusion of evidence for an abuse of
discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court
Forbes v. State Page 10
abuses it discretion if it acts arbitrarily or unreasonably, without reference to any guiding
rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
When considering a trial court’s decision to admit or exclude evidence, we will not
reverse the trial court’s ruling unless it falls outside the “zone of reasonable
disagreement.” Id. at 391; see Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003).
Relevance
First, Forbes argues that the Facebook posts were irrelevant because they did not
show he intended to harm a peace officer. Any evidence that is both material and
probative is relevant. See TEX. R. EVID. 401. All relevant evidence is admissible unless
otherwise excepted by the Constitution, statute, or other rules. See id. at R. 402. Evidence
is relevant if it has any tendency to make more probable or less probable the existence of
a consequential fact. Id. at R. 401; see Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App.
2003). “Questions of relevance should be left largely to the trial court and will not be
reversed absent an abuse of discretion.” Webb v. State, 991 S.W.2d 408, 418 (Tex. App.—
Houston [14th Dist.] 1999, no pet.) (citing Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim.
App. 1993)).
While recuperating from his injuries, Corporal Gonzales looked up Forbes’s
Facebook page to learn more about him. Corporal Gonzales found three Facebook posts
that were “kind of astonishing” to him how they reflected “just the thoughts of the
person.”
Forbes v. State Page 11
The first of the three posts, State’s Exhibit 10, shows a profile picture of a person
Corporal Gonzales identified as Forbes and the name “John Forbes.” The post shows a
repost of a photograph with the words on a black background stating: “‘Fuck it’—my
final thought before making most decisions.”
The second post, State’s Exhibit 11, shows the same name and profile picture with
the statement, “Ain’t that the truth,” and another photograph of words on a black
background stating: “Tomorrow’s a new day and another chance to fuck things up just
a little bit differently.” Corporal Gonzales testified that State’s Exhibit 10 and 11 were
posted on the day of the offense and before the offense was committed.
The third post, State’s Exhibit 12, offered by the State for authentication purposes,
includes a post signed by Forbes’s wife dated May 18, 2019, noting that Forbes was in jail
and listing his inmate number so that he could be sent mail.
At trial, Forbes opened the door regarding his mental state when he cross-
examined police officers about the inability to read his mind to know his intent during
the offense. In particular, Forbes questioned Trooper Hagy extensively about what
Forbes was thinking during the offense and asserted that Trooper Hagy was “just
guessing” about Forbes’s mental state. Through repeated cross-examination, Forbes put
his mental state at issue.
The State was entitled to rebut Forbes’s defensive issue of lack of mens rea by
introducing other evidence. The aforementioned Facebook posts, specifically State’s
Forbes v. State Page 12
Exhibits 10 and 11, reflected Forbes’s mental state on the day of the offense. Indeed, the
posts described Forbes’s approach to decision-making the day of the offense, which was
“[f]uck it.” This approach to decision-making with little regard to consequences
supported, at least, the reckless mental state of the charged offense. See TEX. PENAL CODE
ANN. § 6.03(c). The third Facebook post, State’s Exhibit 12, was relevant for
authentication. We therefore conclude that the trial court did not abuse its discretion by
concluding that the three Facebook posts were relevant.
Authentication
Next, Forbes asserts that the Facebook posts were not properly authenticated.
Texas Rule of Evidence 901 governs the authentication requirements for the admissibility
of evidence and requires the proponent to produce sufficient evidence to support a
finding that the evidence is what the proponent claims it is. TEX. R. EVID. 901(a). Whether
the proponent has crossed this threshold is a preliminary determination for the trial court.
Id. at R. 104(a); Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012); Ryder v. State,
581 S.W.3d 439, 454 (Tex. App.—Houston [14th Dist.] 2019, no pet.). Rule 901 provides a
non-exclusive list of methods for authentication of evidence, including witness
testimony, appearance, contents, substance, or other distinctive characteristics taken in
conjunction with circumstances. TEX. R. EVID. 901(b); Ryder, 581 S.W.3d at 454.
The proponent of the evidence does not need to rule out all possibilities
inconsistent with authenticity, or prove beyond any doubt that the evidence is what it
Forbes v. State Page 13
purports to be. Campbell v. State, 382 S.W.3d 545, 549 (Tex. App.—Austin 2012, no pet.).
The proponent is not required to prove anything. Dominguez v. State, 441 S.W.3d 652, 659
(Tex. App.—Houston [1st Dist.] 2014, no pet.). Rather, the rule requires only a showing
that satisfies the trial court that the matter in question is what the proponent claims; once
that showing is made, the exhibit is admissible. Id.; see Tienda, 358 S.W.3d at 638-40
(noting that electronic communications may be authenticated by a variety of means and
that “the best or most appropriate method for authenticating electronic evidence will
often depend upon the nature of the evidence and the circumstances of the particular
case”); Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2002) (stating that the trial
court does not abuse its discretion by admitting evidence where it reasonably believes
that a reasonable juror could find that the evidence has been authenticated or identified).
We cannot say that the trial court abused its discretion by concluding that the
Facebook posts were authenticated properly. This is because the posts were marked with
photographs identified as Forbes, which jurors could compare to Forbes’s appearance in
open court. One of the posts also included a reference to Forbes being in jail and his
identification number. Further, Corporal Gonzales testified that he had knowledge of
this “life event” to help him authenticate the page. This was sufficient to connect the
Facebook posts to Forbes. And to the extent that Forbes argued that the posts were made
by some unknown person in a conspiracy against him, such was a question of weight for
the jury to resolve. See Tienda, 358 S.W.3d at 645-46.
Forbes v. State Page 14
Probative Value vs. Danger of Unfair Prejudice
Forbes also contends that the probative value of the Facebook posts was
substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403.
Relevant evidence may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice. Id. Rule 403 carries a presumption that relevant evidence
will be more probative than prejudicial and favors the admission of relevant evidence.
Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007). Unfair prejudice does not mean
the evidence injures the opponent’s case—“the central point of offering evidence.” Rogers
v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999). “Rather[,] it refers to ‘an undue
tendency to suggest a decision on an improper basis, commonly, though not necessarily,
an emotional one.’” Id. (quoting Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App.
1993)).
Although not limited to the following enumerated factors, courts should balance
the following under a Rule 403 analysis: (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 a 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.
Forbes v. State Page 15
Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). The trial court is
presumed to have conducted a proper balancing test if it overrules a Rule 403 objection,
regardless of whether the test was conducted on the record. See Williams v. State, 958
S.W.2d 186, 195 (Tex. Crim. App. 1995).
Complaining about the trial court’s Rule 403 ruling, Forbes specifically argues that
the Facebook posts were not relevant to prove his intent; that the State did not need the
evidence to prove any elements of the charged offenses; and that the posts were improper
character evidence. We disagree.
The Facebook posts were probative of Forbes’s mental state on the day in question.
Further, Forbes does not adequately explain how this evidence had the potential to
impress the jury in some irrational, yet indelible way. Forbes does not argue, nor does
the record demonstrate, that an inordinate amount of time was needed to develop this
evidence. And finally, as explained earlier, the State needed this evidence to rebut
Forbes’s defensive theory raised through cross-examination of the State’s witnesses
regarding Forbes’s mental state. This evidence was not solely character-conformity
evidence. See TEX. R. EVID. 404(b) (noting that evidence of other crimes, wrongs, or acts
is admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident); see also De la
Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009) (“Rule 404(b) is a rule of inclusion
rather than exclusion. The rule excludes only that evidence that is offered (or will be
Forbes v. State Page 16
used) solely for the purpose of proving bad character and hence conduct in conformity
with that bad character. . . . One well-established rationale for admitting evidence of
uncharged misconduct is to rebut a defensive issue that negates one of the elements of
the offense.” (internal quotations & citations omitted)).
Rule 403 “envisions exclusion of [relevant] evidence only when there is a ‘clear
disparity between the degree of prejudice of the offered evidence and its probative
value.’” Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (quoting Conner v.
State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)). We cannot say that there is a “clear
disparity” between the danger of unfair prejudice posed by the Facebook posts and their
probative value. See id.; see also Conner, 67 S.W.3d at 202. Thus, we cannot conclude that
the trial court abused its discretion by admitting the evidence over Forbes’s Rule 403
objection. See TEX. R. EVID. 403; Gigliobianco, 210 S.W.3d at 641-42.
The Fifth Amendment of the United States Constitution
Finally, Forbes complains that the admission of the Facebook posts was a “back-
door” violation of the Fifth Amendment of the United States Constitution because it could
force him to testify to explain what the posts meant. See U.S. CONST. amend. V. As the
State contends, Forbes “offers no law demonstrating that a defendant’s personal
statement to friends or the public at large, with no police involvement, can be a Fifth
Amendment violation solely because the defendant may wish to explain it.” Indeed, the
United States Supreme Court has stated that “[v]olunteered statements of any kind are
Forbes v. State Page 17
not barred by the Fifth Amendment.” Miranda v. Arizona, 384 U.S. 436, 478, 86 S. Ct. 1602,
1630, 16 L. Ed. 2d 694 (1969). We therefore cannot conclude that the trial court abused its
discretion by admitting State’s Exhibits 10, 11, and 12. Accordingly, we overrule Forbes’s
second issue in appellate cause number 10-21-00183-CR.
Appellate Cause Number 10-21-00184-CR: Evading Arrest With a Vehicle
In two issues in appellate cause number 10-21-00184-CR, Forbes contends that the
trial court erred by admitting Facebook posts that he allegedly made, and that the
judgment should be reformed to reflect a deadly-weapon finding.
Forbes’s argument pertaining to the admission of the Facebook posts in his first
issue mirrors the argument made in his second issue in appellate cause number 10-21-
00183-CR. Because we have rejected this same argument in appellate cause number 10-
21-00183-CR, we overrule Forbes’s first issue in appellate cause number 10-21-00184-CR.
In his second issue, Forbes asserts that the judgment pertaining to his conviction
for evading arrest with a vehicle should be reformed to reflect a deadly-weapon finding.
An appellate court has authority to reform a judgment to make the record speak the truth
when the matter has been called to its attention by any source. See TEX. R. APP. P. 43.2(b);
see also Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); French v. State, 830
S.W.2d 607, 609 (Tex. Crim. App. 1992).
Here, the record reflects that the jury found that Forbes used a deadly weapon
while evading arrest. The trial court then pronounced the deadly-weapon finding for
Forbes v. State Page 18
this offense. However, the judgment corresponding with this offense includes a “N/A”
in the box for “Findings on Deadly Weapon.” Because the judgment does not reflect the
deadly-weapon finding pronounced in open court, we modify the judgment to reflect
that a deadly-weapon finding was indeed made. We sustain Forbes’s second issue in
appellate cause number 10-21-00184-CR.
Appellate Cause Number 10-21-00185-CR: Tampering With Evidence
In one issue in appellate cause number 10-21-00185-CR, Forbes argues that the trial
court erred by admitting Facebook posts that he allegedly made. Forbes’s argument in
this issue mirrors the argument made in his second issue in appellate cause number 10-
21-00183-CR. Because we have rejected this same argument in appellate cause number
10-21-00183-CR, we overrule Forbes’s sole issue in appellate cause number 10-21-00185-
CR.
Appellate Cause Number 10-21-00186-CR: Possession of a Controlled Substance
With Intent to Deliver
In one issue in appellate cause number 10-21-00186-CR, Forbes asserts that the trial
court erred by admitting Facebook posts that he allegedly made. Forbes’s argument in
this issue mirrors the argument made in his second issue in appellate cause number 10-
21-00183-CR. Because we have rejected this same argument in appellate cause number
10-21-00183-CR, we overrule Forbes’s sole issue in appellate cause number 10-21-00186-
CR.
Forbes v. State Page 19
Conclusion
Based on the foregoing, we modify the judgment in appellate cause number 10-21-
00184-CR to reflect a deadly-weapon finding was made. We affirm as modified the trial
court’s judgment in appellate cause number 10-21-00184-CR. Furthermore, we affirm the
trial court’s judgments in appellate cause numbers 10-21-00183-CR, 10-21-00185-CR, and
10-21-00186-CR.
STEVE SMITH
Justice
Before Chief Justice Gray,
Justice Johnson,
and Justice Smith
(Chief Justice Gray concurs in the Court’s judgments. A separate opinion will not be
issued.)
Appeals affirmed and affirmed as modified
Opinion delivered and filed August 3, 2022
Do not publish
[CRPM]
Forbes v. State Page 20