Johnny Lee Davis v. State ( 2018 )


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  •                              NUMBER 13-17-00103-CR
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI - EDINBURG
    JOHNNY LEE DAVIS,                                                             Appellant,
    v.
    THE STATE OF TEXAS,                                                            Appellee.
    On appeal from the 36th District Court
    of Aransas County, Texas.
    MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Benavides
    Memorandum Opinion by Justice Benavides
    By two issues, appellant Johnny Lee Davis challenges his conviction for criminal
    solicitation, a second-degree felony. See TEX. PENAL CODE ANN. § 15.03 (West, Westlaw
    through 2017 1st C.S.). Davis alleges that: (1) the hearsay evidence allowed by the trial
    court violated his due process rights to a fair trial, and (2) the evidence was insufficient.
    We affirm.
    I.     BACKGROUND
    Davis was charged by indictment of soliciting Jason Phillips to engage in conduct
    that would have resulted in the murder of Jenna Hernandez in 2012. See 
    id. Hernandez was
    a witness in a case against Joshua Davis (Joshua), Davis’s son. Joshua was in
    custody, facing a motion to revoke probation based partially on Hernandez’s allegations
    against him. Shortly before Joshua’s motion to revoke hearing, Hernandez was found
    dead, shot in the head. Another man, Lawrence Mireles, was convicted of Hernandez’s
    murder. Mireles was Joshua’s best friend and living with the Davis family around the time
    of Hernandez’s death.
    However, the State alleged that Davis, a member of the Dirty White Boys gang,
    initially solicited Phillips, a known Aryan Circle gang member, to arrange Hernandez’s
    murder. Prior to trial, Davis argued that mention of gang membership should be excluded
    from the trial. The trial court ruled the State could present evidence of gang membership
    in a non-character purpose to show a motive, plan, opportunity, or other 404(b) exceptions.
    See TEX. R. EVID. 404(b)(2). The trial court also agreed to give a limiting instruction in the
    jury charge and granted Davis a running objection to the gang-related testimony.
    At trial, the following was explained: Hernandez had been reported missing and
    was later found dead on June 28, 2012. Aransas Pass Police Department Captain Kyle
    Rhodes found this to be significant because it was determined through the investigation
    into her murder that Hernandez was scheduled to testify against Joshua at his motion to
    revoke hearing on the day she was found dead.
    2
    As the investigation into the murder progressed, Captain Rhodes was led to Davis
    as a possible involved party.1 Captain Rhodes stated Phillips approached him and through
    their interview, a motive regarding Davis’s involvement with Hernandez’s death was
    discovered: “revenge.” Phillips explained to Captain Rhodes that Davis had approached
    him multiple times, asking for his help to “take care” of Hernandez and Phillips knew Davis
    was angry about the situation2 between Joshua and Hernandez.
    Captain Rhodes also reviewed jail house phone calls between Davis and Joshua.
    Two relevant calls were placed on June 20, 2012, and June 27, 2012. The June 20 call
    had Davis telling Joshua “have Little Lawrence take care of that bullshit,” which Captain
    Rhodes believed to be a reference to the murder of Hernandez. The second phone call,
    placed on June 27 had Davis stating to Joshua “one way or another, you’re getting out of
    there tomorrow.” The second phone call was placed the day before the scheduled motion
    to revoke hearing.
    Phillips testified at trial that he had known Davis for over twenty years and Joshua
    used to be his godson. Phillips admitted to being a former member of the Aryan Circle
    gang and was the vice president of the free world members. Phillips stated he had never
    been violent, but others in the Aryan Circle were known to be. Phillips stated that Kim
    Longbine was his ex-girlfriend who also knew Davis and that she was partially the reason
    Phillips and Davis had a falling out.
    1 Davis was Mireles’s alibi on the day of Hernandez’s murder; he told law enforcement he had been
    with Davis. Mireles was also living with the Davis family at the time of the murder.
    2Based on testimony, Joshua’s motion to revoke was based on an altercation between Hernandez
    and Joshua, in which Hernandez was alleged to have stabbed Joshua.
    3
    During his testimony, Phillips relayed one instance on June 3, 2012, where
    Longbine, Davis, Davis’s wife, also named Kim, and he traveled together to Cuero, Texas.
    During the trip, Davis turned to Phillips and stated that “the girl couldn’t go to court.”
    Phillips just “blew it off” and ignored his request. According to Phillips, a few days later,
    when they were drinking at Davis’s home, Davis again requested that Phillips help with
    Hernandez but Phillips “blew it off, once again, to be just drunk talk” because they had
    been drinking. Davis approached Phillips a third time while they were both at Gold Digger,
    a bar owned by Davis’s sister. At the bar, Phillips stated that Davis came to him and “he
    asked me if I would murder the little girl and I said, ‘No, that we didn’t do them kind of
    things in my family [Aryan Circle].’” Phillips also explained that Davis had offered him “ten
    grand if it could be done.”
    On cross-examination, Phillips said he thought the first two times Davis approached
    him about Hernandez were just drunk talk, but the third time, he knew Davis was serious
    because he had known Davis long enough to know the difference. Phillips agreed that
    Davis and he had a falling out over these requests, as well as Phillips being jealous
    regarding a relationship between Longbine and Davis. Phillips testified that he was not
    promised anything for his testimony, and that he had not testified to help out Longbine,
    who was in custody. Phillips explained he was not testifying due to any vendetta against
    Davis, but because he could not condone Hernandez’s murder.
    Longbine also testified at trial. She stated that she dated Phillips in 2012, and he
    was a high-ranking member of the Aryan Circle gang. Longbine met Davis in a halfway
    house in 2012 and knew him to be a member of the Dirty White Boys gang, although he
    was no longer a member. Longbine recalled the incident in the truck, but believed it had
    4
    occurred outside of Gold Digger on June 3, 2012. She overheard Davis tell Phillips that
    Hernandez could not show up for court, which Longbine took to mean Davis wanted
    Hernandez kidnapped. Longbine knew Davis to be the type of person who would do
    “anything to keep his kids out of prison. I mean, he would do anything for his kids period.”
    Longbine agreed that she and Phillips were both drug users at the time and also stated
    she was getting no benefit from the State for her testimony.
    Corpus Christi Gang Unit Sergeant Paul Lisowski testified to give background on
    the white supremacist gangs involved. He relayed to the jury that Joshua was a known
    member of the Peckerwoods gang, which is generally a gang that feeds into other white
    supremacist gangs. Sergeant Lisowski explained that the Aryan Circle gang was prevalent
    in the area and known for its violent nature. He believed that if a young girl stabbed a
    Peckerwood, then it was likely she would have been “made an example of.” Additionally,
    Sergeant Lisowski stated that if a Dirty White Boy member wanted to retaliate against
    someone, he would have to ask permission of a high-ranking Aryan Circle member before
    doing so.
    Davis presented evidence from his sister, Tabatha Elmore, who testified that she
    owned Gold Digger. Elmore stated she believed Longbine and Davis were dating in early
    2012 and Phillips was jealous and distanced himself from Davis. Elmore also relayed that
    Davis and Phillips would not be in Gold Digger at the same time; if one was there, the
    other one would not come in.
    The jury found Davis guilty of solicitation, and the trial court sentenced Davis to
    eighteen years’ imprisonment in the Texas Department of Criminal Justice–Institutional
    Division. This appeal followed.
    5
    II.     EVIDENCE WAS SUFFICIENT
    By his second issue, which we address first, Davis argues the evidence was
    insufficient to support his conviction for solicitation.
    A.      Standard of Review
    When evaluating a sufficiency challenge, the reviewing court views the evidence in
    the light most favorable to the verdict to determine whether a rational jury could find the
    defendant guilty beyond a reasonable doubt. Brooks v. State, 
    323 S.W.3d 893
    , 899 (Tex.
    Crim. App. 2010) (plurality op.); see Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979). To
    reverse a conviction based on insufficient evidence, Davis must show that no rational jury
    could have found all the elements of the offense beyond a reasonable doubt. 
    Brooks, 323 S.W.3d at 902
    . The jury is the sole judge of the credibility of the witnesses and the weight
    to be given to their testimony, and a reviewing court is not to substitute its judgment as to
    facts for that of the jury as shown through its verdict. Montgomery v. State, 
    369 S.W.3d 188
    , 192 (Tex. Crim. App. 2012). When the reviewing court is faced with a record
    supporting contradicting inferences, the court must presume that the jury resolved any
    such conflict in favor of the verdict, even if it is not explicitly stated in the record. 
    Id. A reviewing
    court must measure the sufficiency of the evidence by the elements of
    the offense as defined by a hypothetically correct jury charge. Villarreal v. State, 
    286 S.W.3d 321
    , 327 (Tex. Crim. App. 2009) (citing Malik v. State, 
    953 S.W.2d 234
    , 240 (Tex.
    Crim. App. 1997) (en banc)). Such a 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. 6 B.
        Applicable Law and Discussion
    Under a hypothetically correct jury charge, the elements of criminal solicitation are:
    a person commits an offense if, with intent that a felony of the first degree be committed,
    he requests, commands, or attempts to induce another to engage in specific conduct that,
    under the circumstances surrounding his conduct as the actor believes them to be, would
    constitute the felony or make the other a party to its commission. TEX. PENAL CODE ANN.
    § 15.03(a).   Additionally, a person may not be convicted under this section on the
    uncorroborated testimony of the person allegedly solicited and unless the solicitation is
    made under circumstances strongly corroborative of both the solicitation itself and the
    actor’s intent that the other person act on the solicitation. 
    Id. § 15.03(b).
    Davis alleges the State failed to prove he committed solicitation because there was
    no evidence of corroboration presented and there was insufficient evidence to show Davis
    solicited Phillips as an accomplice. “The corroboration requirement of section 15.03(b)
    reflects a legislative determination that accomplice testimony implicating another person
    should be viewed with a measure of caution.” Guthrie v. State, 
    149 S.W.3d 829
    , 832 (Tex.
    App.—Waco 2004, pet. ref’d). The evidence must establish that the defendant acted with
    the specific intent that [murder] be committed. Thomas v. State, 
    31 S.W.3d 422
    , 424 (Tex.
    App.—Fort Worth 2000, pet. ref’d). The statute does not allow a conviction based solely
    on the uncorroborated testimony of the person allegedly solicited. 
    Id. The test
    used to
    evaluate corroborating testimony requires us to eliminate from consideration the
    accomplice testimony and then determine whether there is other incriminating evidence
    tending to connect the defendant to the crime charged. Richardson v. State, 
    700 S.W.2d 591
    , 594 (Tex. Crim. App. 1985). In a criminal solicitation case, prosecuted under section
    7
    15.03(a), corroboration is required whether or not the “person allegedly solicited” to commit
    the crime is an accomplice witness. Varvaro v. State, 
    772 S.W.2d 140
    , 143 (Tex. App.—
    Tyler 1998, pet. ref’d) (emphasis in original). The non-accomplice evidence does not have
    to directly link the appellant to the crime, nor does it alone have to establish the appellant’s
    guilt beyond a reasonable doubt; rather, it merely has to tend to connect the appellant to
    the offense. Burks v. State, 
    876 S.W.2d 877
    , 887 (Tex. Crim. App. 1994); see Casey v.
    State, No. 14-04-01165-CR, No. 14-05-00165-CR, 
    2006 WL 348164
    , *6 (Tex. App.—
    Houston [14th Dist.] 2006, no pet.) (mem. op., not designated for publication). Further,
    although evidence of motive is insufficient in and of itself to corroborate an accomplice’s
    testimony, it may be considered with other evidence to connect the accused with the crime.
    Reed v. State, 
    744 S.W.2d 112
    , 127 (Tex. Crim. App. 1988).
    The State had to show that Davis requested, commanded, or attempted to induce
    another to engage in specific conduct that would be a felony or make Phillips a party to a
    felony. See TEX. PENAL CODE ANN. § 15.03(a). The penal code does not require Phillips
    to be an accomplice to the offense. Phillips testified he was approached by Davis on
    multiple occasions requesting assistance to “take care of” Hernandez.               Longbine’s
    testimony confirmed that at least one of the attempts of solicitation took place in her
    presence. Although Phillips and Longbine differed in where they stated the conversation
    requesting Phillips’s assistance took place, they both agreed it occurred in Davis’s vehicle
    and they were headed to Cuero.
    In addition to the testimony of Phillips and Longbine, the State points out the jury
    also heard the jail calls between Joshua and Davis that provide a connection to the offense
    of Hernandez’s murder. The reference to Mireles, the dates the phone calls were made,
    8
    and the reference to Joshua’s release from custody all tend to connect Davis to the
    eventual murder of Hernandez.
    The State also provided testimony from Captain Rhodes and Sergeant Lisowski.
    Captain Rhodes testified about the details of the underlying murder of Hernandez, how
    the information he received led him to believe Davis was involved, and how Davis
    orchestrated Hernandez’s death.            Sergeant Lisowski expanded on how white
    supremacists gangs in the area operated and why Davis would have initially come to
    Phillips with his request.
    Viewing the testimony in the light most favorable to the verdict, we cannot say that
    the evidence was legally insufficient. See 
    Thomas, 31 S.W.3d at 426
    . The testimony of
    the State’s witnesses was sufficient to satisfy the corroboration requirement. See 
    id. We overrule
    Davis’s second issue.
    III.    EVIDENCE WAS PROPERLY ADMITTED
    By his first issue, Davis argues that the testimony regarding gang affiliation was
    hearsay and violated his due process right to a fair trial.
    A.     Standard of Review
    We review a trial court’s ruling to admit evidence for an abuse of discretion. Taylor
    v. State, 
    268 S.W.3d 571
    , 578–79 (Tex. Crim. App. 2008). However, to reverse a trial
    court’s determination, we must find the trial court’s ruling lies outside the zone of
    reasonable disagreement. 
    Id. In applying
    an abuse of discretion standard, we will not
    disturb the trial court’s evidentiary ruling if it is correct under any applicable theory of law.
    De la Paz v. State, 
    279 S.W.3d 336
    , 344 (Tex. Crim. App. 2009). Error in the admission
    of evidence is non-constitutional error and is subject to a harm analysis under Rule 44.2(b)
    9
    of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 44.2(b); 
    Taylor, 286 S.W.3d at 592
    . “We have construed this to mean that an error is only reversible when it
    has a substantial and injurious effect or influence in determining the jury’s verdict.” 
    Id. “We should
    not overturn the conviction if we have fair assurance from an examination of
    the record as a whole that the error did not influence the jury, or had but a slight effect.”
    
    Id. B. Applicable
    Law
    1.      Hearsay Testimony
    Hearsay is inadmissible unless it falls under an exception identified in the Rules of
    Evidence or is allowed by other rules prescribed by statute. Sanchez v. State, 
    354 S.W.3d 476
    , 484 (Tex. Crim. App. 2011); see TEX. R. EVID. 803, 804. “Once the opponent of
    hearsay evidence makes the proper objection, it becomes the burden of the proponent of
    the evidence to establish that an exception applies that would make the evidence
    admissible in spite of its hearsay character.” 
    Taylor, 268 S.W.3d at 578
    –79. The exception
    argued by the State is found under Texas Rule of Evidence 404(b). See TEX. R. EVID.
    404(b).3
    a.      Rule 404(b)
    “When a party attempts to adduce evidence of ‘other crimes, wrongs, or acts,’ in
    order to preserve error on appeal, the opponent of the evidence must object under rule
    404(b) in a timely fashion.” Almaguer v. State, 
    492 S.W.3d 338
    , 353 (Tex. App.—Corpus
    Christi 2014, no pet.) (citing Montgomery v. State, 810 SW.2d 372, 387 (Tex. Crim. App.
    1990) (en banc)); see TEX. R. EVID. 404(b). “Once a complaint is lodged, it is incumbent
    3 During the hearing, Davis asked the trial court to conduct a “balancing test” which we infer to be
    a reference to the rule 403/rule 404(b) balancing test. See TEX. R. EVID. 403, 404(b).
    10
    upon the proponent of the evidence to satisfy the trial court that the ‘other crime, wrong,
    or act’ has relevance apart from its tendency ‘to prove character of a person in order to
    show that he acted in conformity therewith.’” 
    Almaguer, 492 S.W.3d at 353
    (citing TEX. R.
    EVID. 404(b)). If the trial court determines the evidence has no relevance apart from
    character conformity, then the evidence is absolutely inadmissible, and the trial court has
    no discretion to admit it. 
    Id. However, the
    proponent of the evidence may persuade the
    trial court that the ‘other crime, wrong, or act’ has relevance apart from character
    conformity in order for such evidence to be deemed admissible. Id.; see TEX. R. EVID.
    404(b).
    “Merely introducing evidence for a purpose other than character conformity, or any
    of the other enumerated purposes in rule 404(b), does not, by itself, make that evidence
    admissible.” Webb v. State, 
    36 S.W.3d 164
    , 179 (Tex. App—Houston [14th Dist.] 2000,
    pet. ref’d)); see TEX. R. EVID. 404(b). The extraneous offense must also be relevant to a
    ‘fact of consequence’ in the case. 
    Webb, 36 S.W.3d at 179
    (citing Rankin v. State, 
    974 S.W.2d 707
    , 709 (Tex. Crim. App. 1996)).
    b.     Rule 403
    “Once an objection is made under Rule 403, the trial court is called upon to weigh
    the probativeness of the evidence against its potential for ‘unfair’ prejudice—that is, ‘its
    tendency to suggest decision on an improper basis, commonly, though not necessarily, an
    emotional one.’” 
    Almaguer, 492 S.W.3d at 353
    ; see TEX. R. EVID. 403; 
    Montgomery, 810 S.W.2d at 389
    . “Rule 403 imposes a duty upon the trial court to inquire from the opponent
    about the purported prejudice from the admission of evidence.” 
    Almaguer, 492 S.W.3d at 353
    . “Once Rule 403 is invoked, however, the trial court must engage in a balancing test.”
    11
    
    Id. “The language
    of Rule 403 that evidence ‘may be excluded if its probative value is
    substantially outweighed by the danger of unfair prejudice,’ simply means that trial courts
    should favor admission in close cases, in keeping with the presumption of admissibility of
    relevant evidence.” Id.; see TEX. R. EVID. 403. “Unfair prejudice does not arise from the
    mere fact that evidence injures a party’s case. Virtually all evidence that a party offers will
    be prejudicial to the opponent’s case, or the party would not offer it.” Casey v. State, 
    215 S.W.3d 870
    , 883 (Tex. Crim. App. 2007).
    3.     Discussion
    Davis alleges that gang affiliation testimony from Captain Rhodes and Sergeant
    Lisowski and hearsay testimony by Captain Rhodes were allowed in violation of Davis’s
    rights.
    The trial court held a pre-trial hearing on Davis’s motion to exclude mention of gang
    affiliation at trial. After hearing evidence and arguments from both parties, the trial court
    ruled that the State could present testimony regarding Davis and other witnesses’ gang
    affiliation under the exceptions for rule 404(b), which would include being relevant to show
    non-character purpose. See TEX. R. EVID. 404(b). The State alleged it would use gang
    affiliation to prove Davis had an opportunity for the solicitation to occur and the evidence
    went to plan, motive, preparation, and opportunity, all exceptions under rule 404(b). See
    id.(b)(2).
    Captain Rhodes testified that during the course of the Hernandez murder
    investigation, he learned Davis was a member of the Dirty White Boys gang. Davis
    objected to the testimony on the grounds of relevance and 403 and was granted a running
    objection by the trial court. See 
    id. 403. Captain
    Rhodes also stated that Phillips identified
    12
    Davis as a member of the Dirty White Boys prison gang. Davis objected and a limiting
    instruction was given to the jury to not consider the reference for any purpose.
    Sergeant Lisowski testified as an expert regarding his knowledge of white
    supremacist gangs in the Corpus Christi area. He stated he had spent a good portion of
    his tenure dealing with Aryan Nation gangs, which included the Aryan Circle, Dirty White
    Boys, and to some extent, the Peckerwoods. Davis objected to this testimony on the basis
    of relevance and was granted a running objection. Sergeant Lisowski testified generally
    regarding the gangs and did not make a specific reference to Davis in his testimony.
    During his testimony, the trial court issued a limiting instruction to the jury in which he
    explained that they were only to consider the testimony for the “purpose of plan or
    opportunity or intent, if there is any, shown for the commission of the offense.”
    In reviewing the testimony and the trial court’s rulings, we do not find that the trial
    court acted arbitrarily and outside the scope of reasonable disagreement. See 
    Taylor, 268 S.W.3d at 578
    –79.       “Texas courts have held numerous times that evidence of a
    defendant’s gang affiliation is relevant under particular circumstances.” Sanchez v. State,
    
    444 S.W.3d 215
    , 221 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (collecting cases);
    see Smith v. State, 
    355 S.W.3d 138
    , 154 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d)
    (“Gang membership is admissible to show bias, motive, or intent, or to refute a defensive
    theory.”).   Here, the trial court could have reasonably determined that Davis’s gang
    affiliation tended to show a motive for the solicitation in at least two ways. First, gang
    custom required Davis to ask Phillips, a senior leader of the gang, for permission to go
    ahead with the murder, which led him to commit the offense of soliciting Phillips. Second,
    according to Sergeant Lisowski, when Hernandez stabbed Joshua, this would have
    13
    provoked a strong reaction in Davis due in part to his gang-related desire to “make an
    example” out of her and thereby show his that his gang was not to be trifled with.
    The trial court explained the balancing test it conducted prior to the beginning of
    trial. Although Captain Rhodes partially relied on information received from Phillips,
    Phillips and Longbine both identified Phillips and Davis as members of white supremacist
    gangs. Sergeant Lisowski provided background information on the gangs themselves and
    not in reference to specific facts of this particular case. Therefore, we hold the trial court
    did not abuse its discretion in allowing in the gang testimony in this case. We overrule
    Davis’s first issue.
    IV.     CONCLUSION
    We affirm the judgment of the trial court.
    GINA M. BENAVIDES,
    Justice
    Do not publish.
    TEX. R. APP. P. 47.2 (b).
    Delivered and filed the
    26th day of July, 2018.
    14