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Court of Appeals of Texas, El Paso.

JAMES DEE BREWER, JR., Appellant, v. THE STATE OF TEXAS, Appellee.

No. 08-14-00207-CR

Decided: January 12, 2018

Before McClure, C.J., Rodriguez, and Hughes, JJ.


Appellant appeals his conviction for retaliation. 1 In two points of error, Appellant contends that: (1) the trial court abused its discretion in denying his motion to suppress evidence of an oral statement by Appellant where a recording of the statement was not preserved as required by Article 38.22 of the Texas Code of Criminal Procedure; and (2) the trial court abused its discretion in permitting testimony regarding Appellant's gang affiliation over his objection that it was improper character-conformity evidence, and that its probative value was substantially outweighed by the danger of unfair prejudice. We affirm.


Garland Police Officer Aaron Radney arrived at a Super 8 Motel looking for an unnamed female on a matter unrelated to this case. After inquiring about the woman's whereabouts, the motel's manager directed him to room 318 where he encountered Appellant James Brewer, who answered the door. Officer Radney noticed that Appellant was holding a methamphetamine pipe in his hand and requested entry into the room. Appellant granted Officer Radney entry, where he found additional drug paraphernalia but no illegal substances. Appellant was arrested for possession of drug paraphernalia, and it was later determined that he had several Class C tickets and warrants outstanding from other agencies.

Officer Radney placed Appellant in his squad car and transported him to the Garland jail. While en route, Appellant began to volunteer information concerning the Aryan Brotherhood's drug trafficking operations. Believing the information to be credible, Officer Radney contacted narcotics investigator Officer Mark Taylor and requested he meet him at the jail to probe Appellant for useful information and determine his potential to be a cooperating informant. Officer Taylor met Appellant and Officer Radney at the Garland jail and the three of them proceeded to an interview room to discuss the information Appellant had regarding Aryan Brotherhood activities.

Appellant was given his Miranda warnings and Officer Taylor began to ask questions aimed at determining whether Appellant could be a viable cooperative informant. By all accounts, Appellant was very cooperative and the interview was described as “lighthearted” because of the ease with which Appellant provided answers. At some point during the interview, Officer Taylor determined that Appellant would not be a viable option as a cooperative informant, and told him so. Appellant's demeanor abruptly changed. Appellant told Officer Radney that he would like to find him off duty, take a baseball bat and play baseball with his head. Officer Radney testified he took Appellant's threat seriously, in part due to his apparent connections with the Aryan Brotherhood. Appellant was charged with retaliation under Section 36.06 of the Texas Penal Code and found guilty after a brief trial. Appellant's charge was enhanced with two prior felony convictions and he was sentenced to 30 years of imprisonment with the Texas Department of Criminal Justice.


The Motion to Suppress Oral Statement

In his first issue, Appellant contends the trial court abused its discretion when it denied his motion to suppress his oral statement that formed the basis of the retaliation charge. His argument rests on Article 38.22 of the Texas Code of Criminal Procedure, which bars admission of oral statements made during custodial interrogation unless an electronic recording of the statement is preserved.

Standard of Review

We review a trial court's ruling on a motion to suppress evidence for abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). In so doing, we “afford almost total deference to a trial court's determination of historical facts” when those facts are supported by the record, and we will uphold the trial court's decision if it is correct under any theory of law applicable to the case. State v. Stevens, 235 S.W.3d 736, 739-40 (Tex.Crim.App. 2007); see Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996). Where, as here, the trial court does not make explicit findings of fact, we “review the evidence in a light most favorable to the trial court's ruling” and “assume that the trial court made implicit findings of fact supported in the record that buttress its conclusion.” Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App. 2000). Mixed questions of law and fact, or “ultimate facts,” are reviewed de novo, provided the trial court did not resolve them based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997).


Appellant asserts the trial court abused its discretion in denying his motion to suppress because the State was unable to produce the recording made of his statement during questioning. Article 38.22 of the Texas Code of Criminal Procedure provides in relevant part as follows:

Sec. 3. (a) No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:

(1) an electronic recording, which may include motion picture, video tape, or other visual recording, is made of the statement;

(b) Every electronic recording of any statement made by an accused during a custodial interrogation must be preserved until such time as the defendant's conviction for any offense relating thereto is final, all direct appeals therefrom are exhausted, or the prosecution of such offenses is barred by law.

TEX.CODE CRIM.PROC. ANN. art. 38.22, § 3 (West Supp. 2017). Custodial interrogation refers to express questioning by the police, or words or actions that they know are reasonably likely to elicit an incriminating response. Alford v. State, 358 S.W.3d 647, 653 (Tex.Crim.App. 2012), citing Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).

Here, through a technical issue with the Garland police department's computer systems, the interview tape was destroyed along with other electronic data. Appellant contends Officer Taylor's questions in the interview room regarding the Aryan Brotherhood and its drug trafficking activities constitute custodial interrogation. Thus, the State was required to preserve and offer the recording of Appellant's threat to attack Officer Radney with a baseball bat. Because they did not, Appellant argues that the trial court abused its discretion in denying his motion to suppress evidence of the oral statement.

Conversely, the State asserts, as it did at trial, Appellant's statement was res gestae of the arrest and therefore admissible under an exception to Article 38.22. A statement is res gestae if it is made in response to a startling event, either spontaneously or impulsively, and without time for reflection or contrivance. State v. Ortiz, 346 S.W.3d 127, 137 (Tex.App.-- Amarillo 2011, pet. granted), aff'd by, 382 S.W.3d 367 (Tex.Crim.App. 2012) (citing Williamson v. State, 771 S.W.2d 601, 606 (Tex.App.--Dallas 1989, pet. ref'd)). Statements may be admissible as res gestae of the arrest even when they are made as a result of custodial interrogation, provided the officer's inquiry is not leading or suggestive of an answer. Etheridge v. State, 903 S.W.2d 1, 15 (Tex.Crim.App. 1994); see Miles v. State, 488 S.W.2d 790, 791-92 (Tex.Crim.App. 1972)(statement by appellant “I cut the boys” in response to question “what happened?” by officer—within minutes of arrest and made in an excited state—was res gestae). Section 5 of Article 38.22 states that “[n]othing in this article precludes the admission of a statement made by the accused ․ that is the res gestae of the arrest or of the offense ․” TEX.CODE CRIM.PROC.ANN. art. 38.22, § 5.

Based on their testimony at the suppression hearing, Officers Radney and Taylor, in the interrogation room with Appellant, discussed drug activities of Aryan Brotherhood members with him, in part to determine whether he would qualify as a cooperative informant. The trio were not discussing Appellant's possession of drug paraphernalia, his Class C tickets, or his outstanding warrants. Appellant was calm and cooperative during this questioning. However, upon being informed he was not eligible to be a cooperating witness, he became “outraged, angry, high, out of control,” and immediately threatened Officer Radney as described. The statement was not made in response to a question or a leading statement, but rather his response to the realization he would not be able to work out a deal with Officer Radney. Because of the abruptness of the statement and its stimulus, the trial court would not have abused its discretion in holding that the statement was res gestae, especially given the spontaneous nature of the threat combined with Appellant's undoubted dismay that the information he had provided on the Aryan Brotherhood would be for naught. Ortiz, 346 S.W.3d at 137. Accordingly, the trial court did not abuse its discretion in denying Appellant's motion to suppress. Appellant's first issue is overruled.

Introduction of Evidence of Gang Affiliation

In his second point of error, Appellant argues that the trial court abused its discretion by permitting the State to introduce evidence of his possible gang affiliation, asserting that it was improper character evidence, highly prejudicial, and had minimal corresponding probative value in relation to the retaliation charge.


“Whether extraneous offense evidence has relevance apart from character conformity, as required by Rule 404(b), is a question for the trial court.” Devoe v. State, 354 S.W.3d 457, 469 (Tex.Crim.App. 2011). Thus, as noted above, we review the trial court's decision to admit or exclude evidence for an abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex.Crim.App. 2011). If the trial court's decision falls within the zone of reasonable disagreement and is reasonably supported by the record, it will be upheld. Ramos v. State, 245 S.W.3d 410, 418 (Tex.Crim.App. 2008); Torres v. State, 71 S.W.3d 758, 760 (Tex.Crim.App. 2002).

Texas Rule of Evidence 404(b) prohibits the admission of extraneous crimes, wrongs, or other acts to prove a person's character in order to show he or she acted in conformity with that character. See Tex.R.Evid. 404(b). But the rule is one of inclusion rather than exclusion, and bars evidence that is offered or will be used only for the purpose of proving bad character and thus conduct that conforms with that bad character. Segundo v. State, 270 S.W.3d 79, 87-88 (Tex.Crim.App. 2008); Rankin v. State, 974 S.W.2d 707, 709 (Tex.Crim.App. 1996). A non-exclusive list of permissible non-character conformity reasons to introduce extraneous bad acts includes introducing the evidence to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. See Tex.R.Evid. 404(b). The Court of Criminal Appeals has consistently held that an offense is not tried in a vacuum, and that a jury is entitled to know all of the relevant facts and circumstances surrounding the charged offense. Devoe, 354 S.W.3d at 469; Wyatt v. State, 23 S.W.3d 18, 25 (Tex.Crim.App. 2000).

A person commits the offense of retaliation if he or she intentionally or knowingly harms or threatens to harm another by an unlawful act because of the service or status of that other person as a public servant, witness, prospective witness or informant, or because the other person intends to report or has reported the occurrence of a crime. TEX.PENAL CODE ANN. § 36.06(a)(1)(West 2016). In determining whether a statement can be considered a threat, the question is whether a reasonable person would foresee that the statement would be interpreted as a serious expression of intent to harm the other person. Stafford v. State, 948 S.W.2d 921, 924 (Tex.App.--Texarkana 1997, pet. ref'd)(evidence legally sufficient to uphold retaliation charge where officer testified to the repeated and bizarre nature of the threats made by appellant, which permitted the jury to determine they were legitimate threats); Manemann v. State, 878 S.W.2d 334, 337 (Tex.App.--Austin 1994, pet. ref'd)(discussing threat element of telephone harassment). Accordingly, threats are to be considered in light of the context in which they are made. Wyatt, 23 S.W.3d at 25; Manemann, 878 S.W.2d at 337.

Here, Appellant's threat was made in the context of his being associated in some way with the Aryan Brotherhood and his willingness to provide information on their drug-trafficking activities. It was under these circumstances he was being questioned by Officers Taylor and Radney, and proceeded to threaten Officer Radney when he was told he would not qualify as a cooperating informant. Appellant's association with the Aryan Brotherhood was relevant to show the credibility of the threat to Officer Radney, i.e., that the statement would be interpreted as a serious expression of intent to harm the person threatened. Stafford, 948 S.W.2d at 924. Indeed, Officer Taylor illustrated this point when he testified that “[h]aving been the target of a credible threat from the Aryan Brotherhood, knowing that there was an association between the Aryan Brotherhood [and Appellant] and while I was interviewing Mr. Brewer that day, it did lend credibility to that threat to me, yes.” Thus, evidence of Appellant's possible gang affiliation was admissible over his Rule 404(b) objection because it was not introduced solely to show character conformity, but to illuminate the nature of the charged offense, which in turn tended to prove the allegation. Simmang v. State, No. 03-11-00455-CR, 2013 WL 5272919, at *7 (Tex.App.--Austin Sept. 11, 2013, pet. ref'd)(mem. op., not designated for publication)(appellant's Aryan Brotherhood affiliation was relevant in retaliation charge to show his capacity to carry out the threat, which is a circumstance that tended to prove the allegation)2 ; see Camacho v. State, 864 S.W.2d 524, 532 (Tex.Crim.App. 1993); see also Ortiz v. State, 93 S.W.3d 79, 94 (Tex.Crim.App. 2002)(evidence of gang affiliation admissible under Rule 404(b) to show variety of non-character purposes relevant to showing defendant's guilt). Accordingly, the evidence of Appellant's gang affiliation was introduced for a non-character conformity purpose, and the trial court's decision to admit the evidence was not an abuse of discretion.

Appellant also asserts that the probative value of his possible gang affiliation was substantially outweighed by the danger of unfair prejudice, especially considering that the Aryan Brotherhood is recognized as a “white supremacist gang,” and thus should have been inadmissible under Texas Rules of Evidence 403. Otherwise relevant evidence may be excluded when its probative value is substantially outweighed by the danger of unfair prejudice. TEX.R.EVID. 403. Relevant evidence is presumed to be more probative than prejudicial. Davis v. State, 329 S.W.3d 798, 806 (Tex.Crim.App. 2010). Unfair prejudice exists where the evidence tends to suggest decision on an improper basis, “commonly, though not necessarily, an emotional one.” Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex.Crim.App. 2006); Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App. 1990). Rule 403 is applicable to exclude evidence only where there exists a clear disparity between the probative value and the prejudicial effect of the evidence. Davis, 329 S.W.3d at 806.

Here, Appellant contends the references to his possible Aryan Brotherhood affiliation, may have led the jury to find Officer Radney felt threatened and took the threat seriously solely on the basis of that affiliation. But that is precisely the reason the evidence had probative value: to show the jury that Appellant's statement was a credible threat and would have been taken seriously by the officers. Certainly, affiliation with a notorious gang would be prejudicial, but “it is not enough that the evidence is ‘prejudicial’—it must be unfairly prejudicial.” [Emphasis in orig.]. Vasquez v. State, 67 S.W.3d 229, 240 (Tex.Crim.App. 2002); Rogers v. State, 991 S.W.2d 263, 266 (Tex.Crim.App. 1999). The probative value of presenting the threat to the jury in the context of Appellant's gang affiliation was high because it was necessary to provide the jury with the relevant facts and circumstances under which the threat was made. Devoe, 354 S.W.3d at 469. That probative value needed to be substantially outweighed by the danger of unfair prejudice resulting from the jury's knowledge that Appellant was in some way affiliated with the Aryan Brotherhood. Given the balance of interests, it was not outside the zone of reasonable disagreement for the trial court to find that Rule 403 did not require exclusion of the evidence. Ramos, 245 S.W.3d at 418. Accordingly, the trial court did not abuse its discretion in deciding that the potential prejudice did not substantially outweigh the relevant purpose of showing the credibility of the threat, and that the threat was made. Appellant's second issue is overruled.


Having overruled Appellant's two points of error, the decision of the trial court is affirmed.

Hughes, J., Not Participating


1.   This appeal was transferred from the Dallas Court of Appeals pursuant to a docket equalization order issued by the Texas Supreme Court. We apply the precedent of that court to the extent required by Tex.R.App.P. 41.3.

2.   We acknowledge the lack of precedential value in an unpublished opinion, but find the analysis made by our sister court under nearly identical factual circumstances persuasive.


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