Xavier Johnson v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: January 25, 2024
• Docket: 01-22-00505-CR
• Status: Published

Opinion

Opinion issued January 25, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-22-00505-CR ——————————— XAVIER JOHNSON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 278th District Court Madison County, Texas1 Trial Court Case No. 18-12999

1 Pursuant to its docket equalization authority, the Supreme Court of Texas transferred this appeal from the Tenth Court of Appeals, which consolidated Johnson’s two appeals, to this Court. See Misc. Docket No. 22–9050 (Tex. June 30, 2022); see also TEX. GOV’T CODE § 73.001 (authorizing transfer of cases); TEX. R. APP. P. 41.3 (“In cases transferred by the Supreme Court from one court of appeals to another, the court of appeals to which the case is transferred must decide the case in accordance with the precedent of the transferor court . . . .”). MEMORANDUM OPINION

A jury convicted Appellant Xavier Johnson of the third-degree felony

offenses of retaliation and assault on a public servant and assessed his punishment

at ten and twenty years in prison, respectively. In four issues, Johnson argues (1) the

evidence is legally insufficient to support his conviction for retaliation, (2) the

evidence is legally insufficient to support his conviction for assault on a public

servant, (3) the trial court erred in excluding evidence of the complainant’s financial

condition, and (4) the trial court erred in admitting an audiotape recording of the

complainant.

Because we find there was legally sufficient evidence to support the

convictions, and the trial court did not abuse its discretion with respect to the

complained-of evidentiary rulings, we affirm the trial court’s judgment.

Background

Nicole Truelove worked as a literacy teacher in the Windham School District

giving classes to inmates at the Texas Department of Corrections’ Ferguson Prison

Unit in Madison County, Texas, where Johnson was an inmate.2, 3 She alleged that

on November 13, 2017, soon after she started her class at the Ferguson Unit, she saw

Johnson engaging in certain conduct and asked him to stop. Because Johnson did

2 Johnson was serving time for burglary of a habitation. 3 Ferguson is an all-male maximum security prison.

2 not cease his conduct, Truelove started writing a “disciplinary case” on Johnson for

violating a classroom rule. According to Truelove, Johnson found out about the

write up and, when class was dismissed, he grabbed Truelove’s head by the hair,

pulled her out of her chair, and slammed her head against the classroom door.

Truelove alleged Johnson sexually assaulted her and threatened to harm her and her

family.

Johnson was charged by indictment with aggravated sexual assault,

retaliation, and assault on a public servant. Johnson pleaded not guilty. The jury

acquitted Johnson of the aggravated sexual assault charge4 and convicted him of the

other two charges. The jury assessed Johnson’s punishment at ten years and twenty

years, respectively, for the retaliation and assault on a public servant charges.

Evidentiary Rulings

Relevant to this appeal, the trial court made two evidentiary rulings outside

the jury’s presence.

A. The Investigator’s Audiotape

On November 13, 2017, Erin Fontenot was notified by Texas Department of

Criminal Justice Captain Curtis Jordan that a teacher had been assaulted in the

Ferguson Unit. Fontenot, an investigator for the Office of the Inspector General,

walked down to the prison’s education wing and recorded her initial interaction with

4 The jury also acquitted Johnson of the lesser-included offense of sexual assault.

3 Truelove. During the ten-minute audio recording, Truelove is heard sobbing and

stating repeatedly she wants to go home and wants someone to call her son. Fontenot

recorded Truelove “[i]n case she said something that [Fontenot] would need to know

for the investigation.” Fontenot explained she did not “question [Truelove] about

what happened at that time until at the time she was ready to talk,” but she was

recording “in case a name or something came up that we needed to know for our

investigation.”

Johnson argued that Fontenot’s audiotape was inadmissible under Texas Rule

of Evidence 403.5 Johnson argued that several witnesses had already testified that

Truelove was upset that morning, “sobbing hysterically,” “upset, anxious and

crying,” “crying and hysterical” and “crying uncontrollably.” Johnson argued the

audio recording would be prejudicial because it would “confuse the issue and it’s

only intended to inflame the jury to have more sympathy for Ms. Truelove and it’s

already been established how upset she was.” According to Johnson:

[T]his tape will not add any, or very little probative value to whether or not this offense occurred. It’s basically being shown to the jury with hitting them over the head with how horrible this experience was for her. It doesn’t prove that the experience actually occurred. It just proves that she’s crying and screaming, and my concern is it’s going to mislead the jury. It’s going to appeal to their emotions without adding 5 Texas Rule of Evidence 403 allows a court to exclude relevant evidence “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.” TEX. R. EVID. 403.

4 any factual evidence that’s going to assist them in arriving at their decision, so I object to it’s [sic] being admitted.

The State argued that the recording of Truelove was “obviously relevant to

the offense” and was probative as to what happened on the day of the incident. The

State argued that because one witness had attacked Truelove’s character, the tape

“became even more probative as to what actually transpired after that.” The State

continued, “considering the charges in the indictment, the imminence of the threat

and how [Truelove] felt threatened, I think this helps corroborate that evidence, and

so it doesn’t appear to be a hearsay objection—I mean, it’s clearly admissible.”

The trial court overruled Johnson’s objection and admitted Fontenot’s

audiotape into evidence.6 Before the State published the recorded audiotape to the

jury, Johnson re-urged his objection, and the trial court again overruled the

objection.

B. The Financial Documents

During trial, Johnson sought to introduce evidence of a loan Truelove

obtained and of her financial records showing, among other things, that her bank

account was frequently overdrawn. Truelove had obtained a $10,000 loan as an

advance on any potential future settlement or judgment resulting from a pending

civil lawsuit Truelove had filed against the Texas Department of Criminal Justice

6 The trial court ordered that the admitted audiotape be “edited down to the point where they seem to exit the building and they have that rushing sound.”

5 and the Windham School District in connection with Johnson’s alleged assault.

During the relevant offer of proof, Truelove testified she used the loan to pay for her

living expenses.

Johnson argued that evidence of the loan was important because “it provides

motive for [Truelove] continuing to pursue” the allegations against Johnson in that

“one month after the incident, when she says she was so upset, she’s on the

courthouse steps telling everyone she’s filing a lawsuit.” The trial court allowed

Johnson’s counsel to admit evidence of Truelove’s statements to the media

concerning the filing of her civil lawsuit, but it held evidence of the loan was not

admissible because it was “just too far afield.”

Turning to the admissibility of Truelove’s bank records, the trial court held it

would not allow questioning about Truelove’s finances or introduction of her bank

records, “other than to say that she’s got a lawsuit going, she’s asking for money”

and that she received worker’s compensation benefits. The trial court judge stated

he did not “care about her financial condition,” adding that the fact Truelove was

“getting [worker’s compensation benefits] for an alleged injury on the job, to me,

covers all that.” The trial court stated that what Truelove “did with her money, or

what she’s spending her money on, I don’t think is relevant to this particular

Defendant on these particular allegations.”

6 The Trial

A. State’s Witnesses

1. Nicole Truelove

Nicole Truelove was hired on October 2, 2017 by the Windham School

District to teach in the Texas Department of Criminal Justice’s (“TDCJ”) Ferguson

Unit in Madison County, Texas. The Ferguson Unit has an education wing with

classrooms. In addition to Truelove, other teachers give classes to inmates in the

prison’s education wing. They are not correctional officers. Truelove testified she

was teaching Literacy 1 and 2 to inmates who sought to earn a high school

equivalency certificate.

The Ferguson Unit went on lock-down7 around the same time Truelove began

working at the prison. According to Truelove, the lock-down lasted about two weeks

and, during that time, there was no classroom instruction. During the lock-down,

she worked in her classroom, getting it ready for instruction. She attended a one-

week training in the Ferguson Unit before she began to teach. Truelove testified she

wore scrubs while teaching in the Ferguson Unit because she saw another teacher at

the prison also wearing scrubs.

7 According to Ferguson Unit teacher Karen Bishop, lock-down is a two- to three- week period when the offenders are kept in their cells to allow security to look for contraband such as cell phones or weapons. Investigator Erin Fontenot testified that semi-annual lock-downs last for about two weeks. During lock-down, the unit is “thoroughly searched for any type of contraband or problems within the unit.”

7 Immediately or soon after the lock-down ended, classes resumed at the prison.

On the morning of November 13, 2017, Truelove began her class. She took

attendance when the inmates arrived using a seating chart. Truelove started testing

her students “to see where they were on reading with their literacy.” Truelove sat

on her stool by a class projector in the middle of the room or walked around the

room.

During the class, Truelove saw Johnson “doing something” in violation of

classroom rules and she told him to stop. Truelove asked Johnson to stop several

times but he did not do so. As a result, Truelove decided to write a “disciplinary

case” for Johnson. Truelove explained that when inmates fail to “follow the rules,

[she] can’t discipline them;” she instead writes “them a [disciplinary] case,” which

she testified is similar to a high school “office referral.” After they are written, a

discipline case, referred to as a “disciplinary,” is given to the correctional officer in

the prison’s education unit.

Truelove wrote Johnson’s name on the disciplinary. Another inmate got up

to go to the bathroom and saw Johnson’s disciplinary on Truelove’s desk. According

to Truelove, Johnson stopped the objectionable conduct only after he found out she

was writing him a disciplinary. Truelove testified that Johnson asked if he could

talk to her “about it outside,” and she refused.

8 When class ended, the inmates were dismissed. According to Truelove, she

was seated in a chair behind her desk, “right beside the door.” “There was [] a lot

of noise in the hallway, so [she] leaned over to . . . shut [her] door.” When she leaned

over, she saw Johnson’s face. Truelove testified Johnson then “grabbed my head by

my hair and pulled me out of my chair.” She continued, “[I]t hurt. He yanked me

up out of my chair and my legs were, you know, underneath my desk and in my

chair, and I remember my shoe falling off somehow.” Johnson then, “slammed my

head against the door, the back of the door. He had shut the door. He broke my

glasses. They fell to the ground.”

Truelove testified Johnson pulled down her pants and underwear. She

testified “he was right up against” her and that she was “smashed up against the

door.” Johnson then “jammed his fingers up [her vagina] really hard.” Truelove

testified that Johnson told her,

“If you fuck with me, I’ll fuck with you,” and he jammed me really hard, and then he didn’t jam them, but then he said, “[I]f you fuck with me, I’ll fuck with your husband,” and he jammed them really hard all the way up, and then he said, “[I]f you fuck with me, I’ll fuck with your fucking kids,” and did it one more time, and then he let me go.

Truelove testified she thought Johnson was going to kill her. When Johnson

let go of her, Truelove slid down to her knees on the floor. Afterward, Johnson

grabbed a piece of paper from underneath Truelove’s knees, which was the paper on

which she had written the disciplinary. He “wadded [the] piece of paper up” and

9 threw it into the trash. Johnson told her he was “going fucking home” and he left

the classroom.

Truelove heard teacher Karen Bishop on the phone in the hallway of the

education wing. Truelove, still on the ground, knocked on the door in her classroom

to get Bishop’s attention while “trying to get her pants and underwear up.” Truelove

testified she was trying to get out “from behind the door” and she just “wanted to get

out of there.” She was in shock and experiencing vaginal and head pain.

Following the alleged assault, a Ferguson Unit employee came into the

classroom and told Truelove to sit down. The man “kept yelling at me to sit down,

and then he was yelling at me who was that, who was it,” but Truelove was “afraid

to say [Johnson’s] name[.]” She pointed to the trash can, telling him the disciplinary

was in there. Someone else came into the classroom and covered her with a coat and

she left the classroom. At that point, Truelove left the classroom and walked into

the hallway. She kept walking until she felt she was outside. She sat down outside

the fence.

According to Truelove, Erin Fontenot, an investigator for the Office of the

Inspector General (“OIG”),8 took her to Huntsville Memorial Hospital, where

8 According to OIG investigator James Thrailkill, the OIG is the state police department that investigates crimes on state-owned property such as the TDCJ.

10 Truelove was given a physical exam by a Sexual Assault Nurse Examiner. Truelove

gave a formal statement to Fontenot two or three days later.

Truelove testified she considered Johnson’s words a threat “every day of [her]

life since then, every single day.” She stated that she moved after the alleged assault

because she was afraid Johnson would “come after” her. She testified she was afraid

to leave her house after the alleged assault. Truelove was scared of Johnson even

though he was in prison because she did not know when he was getting out, whether

he had family on the outside, or whether he would send someone to find her. She

testified she moved across town because she was scared.

The jury heard a recording9 of a news story featuring Truelove in front of the

Harris County Courthouse giving a statement. Truelove was at the courthouse with

her father, her brother, and her attorneys. In the news clip, Truelove read a letter she

wrote to Governor Greg Abbott. She stated that she was upset because she was being

told the TDCJ was going to cover up the alleged assault and she wanted something

to be done about it. She was upset Johnson had not been arrested for the alleged

assault. After she sent the letter to the Governor, charges were filed against Johnson.

According to Truelove, it was her lawyer’s idea for her to hold the press conference

9 It is unclear from the record whether the jury was shown the videotaped recording of the news story or only the audiotaped version. 11 and read the letter. She testified she regretted having read that statement, which she

wrote at her lawyers’ request, because of how it later affected her family.

Truelove testified she filed a civil lawsuit in connection with Johnson’s

alleged assault and that the lawsuit was pending at the time of the trial. According

to Truelove, the civil proceeding was on hold because “they need evidence from this

trial to proceed, and they cannot get it right now.”

Truelove testified she received worker’s compensation benefits for two years

following the alleged assault. She testified that the worker’s compensation benefits

she received did not cover the amount of her full salary. She believed Windham

School District paid her the difference between her worker’s compensation benefits

and her full salary for a time.

2. Karen Bishop

Karen Bishop works for the Windham School District in the Ferguson Unit of

the TDCJ. She testified she has worked for the district for 12 years. She teaches

math and science for the high school equivalency program.

Bishop testified that November 13, 2017 was the first day after the lock-down

at the Ferguson Unit ended. She testified that classes had been dismissed and she

had just finished talking to the school’s counselor on a hallway phone when she

heard sobbing from Truelove’s classroom. She did not see Truelove when she first

looked toward Truelove’s classroom but she continued to hear crying. Bishop saw

12 Truelove went she went to Truelove’s classroom and leaned into the classroom’s

window.

Bishop saw Truelove behind the classroom door, bent at the waist. Bishop

testified, “Her pants and panties were down around her knees.10 I think her shoe was

off.” When she found her, Truelove “was sobbing, very—kind of hysterical.”

Bishop asked Truelove if she was okay and Truelove, sobbing, said something like,

“he hurt me.” Bishop called for Officer Morales, a correctional officer. After Bishop

called Officer Morales, he came running down the hallway, looked in Truelove’s

room, and called for a female officer. The female officer, Shirley Cunningham,

arrived and went into Truelove’s room. Officer Cunningham helped Truelove get

up and pull up her pants.

Bishop testified that the classroom windows are plexiglass, so if a door closes,

it rattles the entire wall. She stated the doors are solid wood and there is an air

condition exchange made of something like thin aluminum at the bottom of each

door. Bishop testified she did not hear banging on the door or on the vent or any

sound of a scuffle. She testified that the hallway was “pretty clear” by the time

10 Bishop testified that when she looked through the window and first saw Truelove behind the classroom door, her pants and underwear were around her knees, but by the time Bishop got into the classroom, Truelove’s pants and underwear were around her ankles. Bishop conceded, however, that she gave a statement the day of the alleged assault in which she stated she looked in the window and saw Truelove behind the classroom door with her underwear around her knees and her pants all the way down.

13 Truelove would have been banging on her classroom door. Bishop testified she did

not see any signs of a scuffle. She stated that if a scuffle had occurred around

Truelove’s desk, where Truelove testified Johnson pulled her out from her desk by

her hair and behind the door, “[i]t would have been visible, because the windows are

right there.” Bishop later conceded no one was standing by the classroom window

when the alleged assault occurred, so no one would have seen if a scuffle occurred.

The jury was shown a surveillance video of the inmates leaving their

classrooms on the day of the alleged incident. A person is seen walking out of

Truelove’s class after everyone else has been dismissed, and Bishop testified that

she believed it was Johnson. The video shows Bishop on the phone. After she hung

up, she heard Truelove’s crying. The jury was shown a second video of the

educational wing at the Ferguson Unit from a different angle.

Bishop testified that when the alleged incident occurred, she had been

working with Truelove for about three or four weeks. When asked about her opinion

concerning Truelove’s “reputation for truthfulness,” Bishop testified she “does not

think [Truelove] is very truthful.” For example, Truelove testified she was told by

the principal not to remove students from the classroom if they break classroom

rules, but Bishop testified the principal never told her not to remove students from

class. Bishop also testified that inmates typically get angry when a disciplinary is

14 written on them and they try to get rid of the disciplinary by taking it with them,

eating it, flushing it, or shredding it—not by merely throwing it in the garbage.

3. Shirley Cunningham

Shirley Cunningham was a correctional officer with the TDCJ on November

13, 2017. She monitored offenders at the Ferguson Unit. She testified she had

worked in the Ferguson Unit six or seven years prior to November 2017. She worked

in the Ferguson Unit’s education department.

As they were dismissing the offenders from class on the day of the alleged

assault, Bishop called to her to “come see what was going on. She said she could

hear something and she wanted me to go check it out, and when I went in the

[class]room . . . the teacher [Truelove] was behind the door with her pants down and

she was in a fetal position[.]” Officer Cunningham asked Truelove who did it and

“she was sort of like she didn’t want to tell me, but I kept saying who done this, who

done this and I was trying to get her pants up. Her pants and her panties were down,

and I helped her get up, and she was crying, she was hysterical[.]”

Officer Cunningham continued, “Well I was excited too, and I was saying

who done this, who done this, who done this, and she did say the offender done it[.]”

Truelove “was hysterical, she was crying, and she did say who done it, after —after

she told me about the [disciplinary] case she had wrote.” Officer Cunningham was

15 there when the disciplinary was found wadded up in the trash can. Johnson’s name

was written on the disciplinary.

Officer Cunningham did not witness the alleged assault or hear Johnson say

threatening words to Truelove. She did not see papers on the floor when she entered

the classroom.11

4. Julie Pickens

Julie Pickens is an advanced practice registered nurse. She testified that on

November 13, 2017, she was working at Huntsville Memorial Hospital. She was a

trauma program manager, an emergency room nurse, and a sexual assault nurse

examiner (“SANE”). As part of her duties as a certified SANE, she examined people

who were sexually assaulted.

According to Pickens, she conducted a SANE exam of Truelove on November

13, 2017. When Truelove arrived, “she was upset, she was anxious, she was crying.

She was scared. She was in pain.” She had a headache and vaginal pain. Pickens

performed a SANE examination on Truelove and did not find any physical evidence

of sexual assault.12 According to Pickens, that was consistent with the events related

by Truelove because there is often no evidence of a digitally penetrative sexual

assault.

11 Photos of the classroom do not show papers strewn about on the floor. 12 Pickens testified she did not find any bruising on Truelove’s body.

16 According to Pickens, Truelove told her that Johnson had his hands in his

pants during class. Truelove told Pickens that Johnson possibly thought “she was

looking at him and making a case or statement against him for having his hands in

his pants[.]” Truelove told Pickens that after class, everyone left. Truelove finished

her work and thought she heard something in the hall, so she went to the door. She

saw nothing so she came back in and heard the door shut behind her. Truelove told

Pickens that Johnson was behind the door and grabbed her by her hair, pushed her

face against the door, and there was a scuffle. Truelove stated she lost her shoe and

that Johnson had one hand over her mouth and was trying to get her pants down.

Truelove heard her clothes tearing or stretching and “then he was inserting his

fingers in her vagina, telling her if you ‘f’ with me, I’ll ‘f’ with you. If you ‘f’ with

me, I’ll ‘f’ with your husband. If you ‘f’ with me, I’ll ‘f’ with your kids. The whole

time he was penetrating her with his fingers, and then he saw a piece of paper on the

desk, wadded it up and threw it in the trash can and left, and she was trying to get

attention to someone she heard on the phone and trying to get her clothes up and

everyone else was walking in.” As Truelove recounted this to Pickens, “[s]he was

crying. She was upset, anger outbursts at times, very tearful, emotional, scared.”

After performing a SANE examination on Truelove, Pickens performed a

SANE examination on Johnson. Pickens testified it is common for law enforcement

17 to bring in sexual assault suspects to collect their DNA and to get their statement and

side of the story.

Pickens testified that Johnson told her when he was brought in for a SANE

exam that “they said [he] did something . . . and he said he didn’t do anything.”

According to the statement Pickens took from Johnson, he said he had his hands in

his pants because it was cold and everyone else did also. Other inmates told him

Truelove wrote him up, so he asked Truelove if they could talk about it and Truelove

told him to wait until after class. According to Pickens, Johnson told her, “After

class she closed the door and had a piece of paper. She showed me and asked me if

I see any rules that I had broken. I told her I didn’t see any on that paper. Then she

asked if I see any that I should follow. I told her I should follow all the rules, then

she wadded up the paper and gave it to me to throw in the trash and I took it and

threw it in the trash can.”

5. Curtis Jordan

Curtis Jordan, a TDCJ Captain, was a Lieutenant at the Ferguson Unit on

November 13, 2017. He heard a call for a supervisor to the Ferguson Unit education

department. He was the first supervisor to arrive on the scene. Officer Jordan spoke

to Officer Morales, who told him about “the incident that had possibly occurred.”

When Officer Jordan first arrived on the scene, he thought the incident could have

resulted from a consensual relationship between Truelove and an inmate, which is

18 not allowed. As he spoke to other witnesses and observed Truelove, his opinion

changed.

When Officer Jordan got to Truelove’s classroom, he saw that “[s]he was

visibly upset. She was crying. She had her face in her hands. She was saying that

she wanted to go home.” He asked Truelove questions, but she was “not really very

responsive,” so he spoke to another teacher in the hallway. Officer Jordan testified,

“[B]ased on the information that was relayed to me, I assumed that it possibly could

have been a sexual assault,” so he notified his superior officer and investigators in

the Ferguson Unit. Officer Jordan testified that Truelove “was crying uncontrollably

. . . just to where she wouldn’t even talk anymore, and she wouldn’t respond to my

questions.”

Officer Jordan found the disciplinary crumpled up in the trash can. The

disciplinary, which was crumpled up and admitted into evidence, contained the name

Xavier Johnson and stated that Johnson “kept his hands in his pants and looked at

my me the whole time.” Officer Jordan compared the disciplinary to the classroom

roster to get the inmate’s number. He secured the disciplinary and gave it, together

with the inmate’s name and number, to Captain Tad Howard to “identify [Johnson]

and get him restrained and separated from the population, so that way OIG could

continue their investigation.”

19 6. Tad Howard

Tad Howard is a Captain in the Ferguson Unit. He responded to a call on

November 13, 2017 in the Ferguson Unit Education Department. He “was informed

there may have been an assault on a staff member.” Following the alleged assault,

Officer Howard saw Truelove in the education wing and “she seemed very distraught

and was crying.”

Officer Howard was told an inmate named Xavier Johnson may have been

involved. He placed Johnson in hand restraints as he came out of the Ferguson Unit

Education Department and escorted him to the classification committee room.13

Johnson did not resist when the restraints were put on him. He did not have the

opportunity to wash his hands before the hand restraints were put on him.

After Johnson’s clothes were collected and his hands were placed in bags, he

was taken to Huntsville Memorial Hospital, where he gave DNA samples. Officer

Howard stayed with Johnson throughout the entire process. At the hospital, Johnson

“made the statement to the effect of did she say which hand I covered her mouth

with.” OIG Investigator James Thrailkill and Captain Wendall Wyatt were in the

room with Officer Howard and Johnson at the time. After the evidence was collected

from Johnson, he was returned to Ferguson.

13 In the classification committee room, panels of prison employees address disciplinary issues, among other things.

20 7. Erin Fontenot

Erin Fontenot is an investigator with the OIG. She testified that OIG

investigators “investigate any criminal or administrative issues that happen on TDCJ

property.” On November 13, 2017, she was assigned to the Ferguson Unit, where

she was one of three investigators. The alleged assault occurred on the first day after

a lock-down at the Ferguson Unit ended. The OIG office received a call from Officer

Jordan, who said “a teacher had been assaulted in the Education Department.” The

investigators went to the education wing, spoke with Officer Jordan, and Fontenot

went into the classroom with her audio recorder going.

When Fontenot entered the room, Truelove was “perched” in her chair near

the desk. “She was almost curled up in a ball as she could be, while sitting on that

chair.” “She was crying, she was obviously upset and crying, stating that she wanted

to leave, and she was covering herself with a jacket. At that time her clothing had

been pulled up back to where it normally should have been.” Fontenot was recording

Truelove “[i]n case she said something that [Fontenot] would need to know for the

investigation. I wasn’t going to question her about what happened at that time until

at the time she was ready to talk, but in case a name or something came up that we

needed to know for our investigation.”

Truelove wanted to leave the prison. She agreed to see a SANE. As she left

the building, she walked down the hall with a jacket over her head. Fontenot took

21 Truelove to Huntsville Memorial Hospital to have a sexual assault exam. Truelove

had trouble sitting in the front seat of Fontenot’s car. The SANE exam lasted around

three hours. After the exam, Truelove’s father picked her up from the hospital.

Meanwhile, back at the prison, Johnson had been placed in the classification

committee room and interviews were being conducted of other offenders and of

staff. Almost eighty interviews were conducted for this case. Six or seven OIG

investigators from across the region were called in to help with the investigation.

Fontenot interviewed Truelove on November 15, 2017, two days after the

alleged assault. Fontenot already knew some of the details of the alleged assault

because Truelove permitted Pickens to share with Fontenot what Truelove told her

during the SANE exam. After her investigation, Fontenot obtained a warrant against

Johnson for aggravated sexual assault, for which she believed she had probable

cause. The probable cause affidavit executed by Fontenot referred to Truelove’s

“torn clothing.” Fontenot explained that the elastic in Truelove’s underwear had

been broken.

Photos of the classroom after the alleged assault show a bobby pin and hairs

around it on the floor by the door in the classroom. Fontenot testified that inmates

in the Ferguson Unit are not allowed to have bobby pins. Fontenot could not say

with absolute certainty where the bobby pin came from or whether it had any

relationship to the alleged assault. She believed two hairs were collected with the

22 bobby pins. Truelove told Fontenot she had bobby pins in her hair the day of the

alleged assault. Fontenot obtained a hair sample from Truelove. The bobby pin had

dust bunnies. She conceded Truelove would not likely wear a bobby pin with dust

bunnies.

The arrest warrant for Johnson was signed on December 16, 2017, two days

after Truelove’s press conference. Fontenot believes the probable cause affidavit

was signed the same day. She testified that the OIG and Department of Public Safety

(“DPS”) were pressured by the Governor’s office to get the case moving.

8. Devin Crago

Devin Crago is a section supervisor of the Houston DPS Regional Crime Lab.

She was a forensic scientist in the trace evidence section when she wrote a report

regarding two hairs that were submitted from the scene of Truelove’s alleged assault.

One of the hairs was “microscopically similar” to the hairs collected from Truelove

and the hair’s root characteristic “gave an indication of having been forcibly

removed.” The other hair also was microscopically similar to Truelove’s hair

sample but had fewer features for comparison. She testified that hair can be forcibly

removed by ways other than being pulled out— for example, by normal use of a

hairbrush.

23 9. Jessica Ehmann

Jessica Ehmann is a supervisor and forensic analyst in the DNA section at the

Houston DPS crime laboratory. She testified that she analyzed the DNA in the two

hairs and found they were consistent with Truelove’s DNA. She testified there is no

DNA that connects Johnson to the alleged assault. According to Ehmann, using

autosomal DNA testing, no male DNA was detected in Truelove’s vaginal swab or

mouth swab, or from the swab of Truelove’s underwear. Using a more sensitive

DNA profile called YSTR, however, Ehmann found a small amount of male genetic

material in the mouth swab, but it was impossible to tell whether it came from one

person or multiple people. Also, there was male DNA from at least two males on

the swab of the underwear but it could not be identified. Ehmann testified that in

digital penetration cases, analysts frequently do not find DNA of someone other than

the victim.

Ehmann testified that Johnson’s DNA samples included swabs from his

hands, fingers, fingernails, pants, and boxer shorts. The DNA swab of Johnson’s

hands was uninterpretable because it came back as a mixture of more than four

individuals.

10. James Thrailkill

James Thrailkill is an OIG investigator. He testified that on November 13,

2017, he was working at the Ferguson Unit when he received a report of an assault

24 in the Education Department. He and his two coworkers14 responded. When they

arrived, he saw one of the teachers in the classroom “kind of crouched down in the

corner against the wall” and Fontenot entered the room. Officer Thrailkill collected

Johnson’s clothes in the classification committee room, put them in evidence bags,

and bagged Johnson’s hands. He went with Johnson to the evidence collection by

the SANE at the hospital.

B. Defense Witnesses

1. Cleburne Swilley

Cleburne Swilley is Truelove’s ex-husband. He testified that Truelove is not

truthful. He stated he knew nothing about the alleged assault on November 13, 2017.

2. Carline Swilley

Carline Swilley is a retired Harris County Sheriff’s Department deputy.

Cleburne Swilley is her son. She testified Truelove was married to her son,

Cleburne. She testified that Truelove is not a truthful person. Carline knew nothing

about the alleged assault on November 13, 2017.

3. Matt Quartaro

Matt Quartaro is a self-employed DNA analyst. His company helps attorneys

understand DNA results and determines whether the testing was done according to

14 Christopher James, Thrailkill and Fontenot were the three OIG investigators at Ferguson.

25 generally accepted guidelines in the community.

Quartaro testified that autosomal DNA analysis, which is performed in most

cases, does not separate male and female DNA. YSTR testing is specific for male

DNA—it helps to see if the male who might have left DNA in a sample can be

identified. The YSTR analysis detected no male DNA on Truelove’s vaginal swabs,

found it was uninterpretable from the mouth swabs and found a partial YSTR profile

on the underwear, which meant they could not detect all the DNA material there. It

appeared to be a mixture of two males, but they could not tell who left the DNA

behind.

According to Quartaro, no YSTR testing links Johnson to Truelove.

Johnson’s DNA analysis was inconclusive because it was impossible to identify the

number of contributors to the samples. At least four individuals donated DNA to

the sample analyzed from Johnson’s hands and fingers. No DNA could be recovered

for analysis from under Johnson’s fingernails.

Quartaro testified about a 2011 study concerning DNA on fingernail scrapings

after digital penetration. In the study, in every sample tested, DNA transferred from

the vagina under the fingernails during digital penetration. In a case of digital

penetration, he would have expected “that DNA would transfer.” According to

Quartaro, the act of digitally penetrating someone “should leave a fair amount of

epithelial cells on the hands, and in the absence of removing those, they should stay

26 there until they degrade or they are removed.” Even if Johnson licked his fingers

after the alleged assault, Quartaro would expect some of Truelove’s DNA to be

detectable, either under the fingernails or on the fingers. Quartaro stated, “[I]f there

was digital penetration, there would be a good amount of DNA transferred, and

based on the studies that I’ve looked at, it should persist for several hours.”

However, he acknowledged that DNA from the perpetrator’s fingers would not

necessarily be recovered in every case of digital penetration. He testified that the

DNA testing was done “pretty well.”

Quartaro conceded that it is possible during the three-and-a-half hours

between the alleged assault and the time Johnson’s hands were bagged that there

was a DNA transfer. After watching part of one of the videos admitted into evidence,

Quartaro testified it looked like Johnson was “biting his fingernails” after the alleged

4. Donald Manry

Donald Manry, a private investigator, testified that some of the investigators

used leading questions when they interviewed Truelove.15 He testified he saw no

sign of the waistband being torn from Truelove’s underwear or of loose elastic on

the waistband. It was concerning to him that Fontenot’s report did not include

15 Manry testified that Fontenot’s leading questions were not about how the assault allegedly occurred or who committed it.

27 information about the bobby pins and he stated that it is not normal for a victim in

this type of offense to go to the media so soon after the alleged assault. Manry

testified that Truelove’s statements about whether she was sitting or standing at her

desk when the alleged assault occurred were inconsistent.

According to Manry, when a classroom door in the education wing is closed,

it shakes the classroom’s plexiglass windows. He testified that if someone slumped

down behind the door and yelled, the sound would have traveled through the vent at

the bottom of the door and reverberated down the hallway in the Ferguson Unit. He

stated that Truelove’s testimony that she was yelling and beating on the classroom

door “just is not consistent with Ms. Bishop being right there.”

Manry was shown a surveillance video of the educational wing at the

Ferguson Unit taped on the day of the alleged assault. Johnson is seen walking out

the classroom in the video. Manry testified that Johnson did not close the door after

walking out, which is inconsistent with typical criminal behavior to try to conceal

an act. Manry explained that later in the surveillance video you can see the

classroom door closed for the first time “because you see the door knob pop out just

a little bit . . . .” By contrast, Manry testified that you do not see the doorknob in the

video when Johnson is in the classroom with Truelove. According to Manry, had

Truelove been grabbed by the hair and thrown forcefully into the door as she

testified, the doorknob of the classroom would have been visible. Manry

28 acknowledged, however, that it is not uncommon for a complainant to get small

details wrong when later recalling the event. He agreed that it happens “pretty

frequently” that little details are off.

Sufficiency of the Evidence

In his first and second issues, Johnson contends the evidence was insufficient

to support the judgment of conviction for the offense of retaliation and for the

offense of assault on a public servant.

A. Standard of Review

We review a challenge to the sufficiency of the evidence under the standard

adopted in Jackson v. Virginia, 443 U.S. 307, 319 (1979). See Winfrey v. State, 393

S.W.3d 763, 768 (Tex. Crim. App. 2013); Brooks v. State, 323 S.W.3d 893, 895

(Tex. Crim. App. 2010). Pursuant to Jackson, we “consider all the evidence in the

light most favorable to the verdict and determine whether, based on that evidence

and reasonable inferences therefrom, a rational juror could have found the essential

elements of the crime beyond a reasonable doubt.” Alfaro-Jimenez v. State, 577

S.W.3d 240, 244 (Tex. Crim. App. 2019) (quoting Hooper v. State, 214 S.W.3d 9,

13 (Tex. Crim. App. 2007)); see Jackson, 443 U.S. at 319. Under this standard,

“[c]ircumstantial evidence is as probative as direct evidence in establishing the guilt

of an actor” and “the standard of review on appeal is the same for both direct and

circumstantial evidence cases.” Kuciemba v. State, 310 S.W.3d 460, 462 (Tex.

29 Crim. App. 2010) (quoting Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App.

2004)).

In our review, we give “full play 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.” See Jackson, 443 U.S. at 319; Clayton

v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We presume the fact finder

resolved any conflicts in the evidence in favor of the verdict and defer to that

resolution, as long as the resolution is rational. See Jackson, 443 U.S. at 326.

Our review of the record includes all introduced evidence, whether properly

or improperly admitted. See Winfrey, 393 S.W.3d at 767 (stating courts consider

admissible and inadmissible evidence presented at trial when conducting sufficiency

analysis). “Each fact need not point directly and independently to the guilt of the

appellant, as long as the cumulative force of all the incriminating circumstances is

sufficient to support the conviction.” Hooper, 214 S.W.3d at 13.

B. Conviction for Retaliation

A person commits the offense of retaliation “if the person intentionally or

knowingly harms or threatens to harm another by an unlawful act . . . in retaliation

for or on account of the service or status of another as a . . . public servant, witness,

prospective witness, or informant[.]” TEX. PENAL CODE § 36.06(a)(1)(A). The

indictment against Johnson alleged that Johnson harmed Truelove by “us[ing] his

30 hand to pull the hair of [Truelove], and cause her bodily injury, in retaliation for or

on account of the status of [Truelove] as a prospective witness.” See TEX. PENAL

CODE § 36.06(a)(1)(A).

Johnson argues “the State failed to prove beyond a reasonable doubt that the

harm inflicted upon Truelove resulted from a retributive attack for duties already

performed.” He argues that at the time of the alleged assault, Truelove had merely

begun the process of drafting her disciplinary against Johnson and had yet to submit

it to any prison staff. According to Johnson, because the disciplinary was

incomplete, “the State failed to prove that [he] attacked Truelove in retribution

(retaliation) for or on account of her service or status as a prospective witness.” He

concludes that because Truelove had not written the disciplinary, she was not a

“prospective witness” as that term is defined in the Penal Code.

The State disagrees, arguing that the only reason the disciplinary was

incomplete was because Johnson’s assault prevented Truelove from completing it.

The State argues that but for Johnson’s attack, Truelove would have been able to

complete the disciplinary and submit it to the correctional staff. Given that Johnson

is the “sole reason” Truelove’s duty with respect to the disciplinary was not

completed, the State argues, Johnson “cannot now claim that Truelove was not a

prospective witness within the meaning of the statute. It is his criminal actions that

prevented the completion of the process.” We agree.

31 One of the retaliation statute’s central purposes “is to encourage a specified

class of citizens—which includes public servants, witnesses, prospective witnesses,

and informants—to perform vital public duties without fear of retribution.” Cada v.

State, 334 S.W.3d 766, 771 (Tex. Crim. App. 2011). These public duties include

“reporting criminal activities, testifying in official proceedings, or cooperating with

the government in a criminal investigation.” Id. (citing Morrow v. State, 862 S.W.2d

612, 615 (Tex. Crim. App. 1993); see also Davis v. State, No. AP-77,031, 2016 WL

6520209, at *12 (Tex. Crim. App. Nov. 2, 2016) (not designated for publication)

(“A ‘central purpose’ of § 36.06 is to encourage public servants, witnesses,

prospective witnesses, and informants to perform vital public duties, such as

reporting criminal activities, testifying in official proceedings, and cooperating with

the government in criminal investigations, without fear of harm or physical injury.”)

(citing Cada, 334 S.W.3d at 771).

The indictment for retaliation alleged Johnson harmed Truelove by “us[ing]

his hand to pull the hair of [Truelove], and cause her bodily injury, in retaliation for

or on account of the status of [Truelove] as a prospective witness.” See TEX. PENAL

CODE § 36.06(a)(1)(A). Although the Penal Code does not define “prospective

witness,” the Court of Criminal Appeals has held that a jury charge defining

“prospective witness” as “a person who may testify in an official proceeding” is

32 proper. Morrow, 862 S.W.2d at 613.16 The Court further held that “an official

proceeding need not be initiated [] for a person to be a ‘prospective witness’ under

section 36.06 of the Penal Code.” Id. at 615; see also Ortiz v. State, 93 S.W.3d 79,

86 (Tex. Crim. App. 2002) (“[W]e have held that a ‘prospective witness’ is any

‘person who may testify in an official proceeding.’ Formal proceedings ‘need not be

initiated.’”).

Johnson relies on Riley v. State, 965 S.W.2d 1 (Tex. App.—Houston [1st

Dist.] 1997, pet. ref’d) in support of his retaliation argument. In Riley, the appellant,

a prison inmate, walked past the prison’s central control desk. Id. at 1. A guard told

the appellant to stop and return to the desk. Id. The appellant refused and continued

to walk down the hall. Id. After another guard (“Freeman”) ordered the appellant

to stop several times, he attempted to block the appellant’s way. Id. The appellant

and Freeman became involved in a fight in which Freeman suffered multiple cuts to

his face, twisted his ankle, and was knocked unconscious. Id. The appellant was

convicted of retaliation and sentenced to twenty-five years in prison. Id. We

reversed, holding it is not enough for the State to “demonstrate a public servant was

16 When a term is not statutorily defined, we ascribe that term “its ordinary and usual meaning.” Hastings v. State, 82 S.W.3d 493, 495 (Tex. App.—Austin 2002, pet. ref’d). “Prospective” is defined as “anticipated or expected; likely to come about.” Id. (citing Blacks Law Dictionary 1238 (7th ed.) 1999). “Witness” is defined as “one who has testified in an official proceeding.” Hastings, 82 S.W.3d at 495 (citing Jones v. State, 628 S.W.2d 51, 55 (Tex. Crim. App. 1980)).

33 harmed while lawfully discharging his official duties. It must prove the harm

inflicted resulted from a retributive attack for duties already performed.” Id. at 2.

Sustaining the appellant’s legal sufficiency challenge, we held there was no evidence

supporting the retributory element.

Johnson’s reliance on Riley is misplaced. Unlike in Riley, here there was a

retributory element: the disciplinary. The jury heard evidence that Johnson was

aware of the disciplinary when he pulled Truelove’s hair and threatened her, her

husband, and her children. Had Johnson not known about the disciplinary, but

merely pulled Truelove’s hair, the evidence might not support a retribution

conviction. But the evidence indicates Johnson knew about the disciplinary when

the alleged assault happened and that the disciplinary was the reason for the alleged

attack, distinguishing this case from Riley.

We believe the Court of Criminal Appeals’ opinion in Morrow v. State is more

factually aligned with the facts of this case and thus instructive. In Morrow, a prison

inmate (“Morrow”) threw hot water in the face of another inmate who reported to

prison authorities that Morrow was responsible for a broken skylight. 862 S.W.2d

at 613. As he threw the hot water into the other inmate’s face, Morrow allegedly

said, “That will teach you to snitch.” Id. The inmate sustained third-degree burns

and Morrow was charged with retaliation. Id. Morrow was convicted of retaliation

and the court of appeals affirmed. Id.

34 Morrow argued in the Court of Criminal Appeals that a prospective witness

“must bear some relationship to an official proceeding that has actually been

initiated,” and because charges were never filed against Morrow for his alleged

destruction of the skylight, the injured inmate was not a “prospective witness.” Id.

The Court disagreed, holding that “an official proceeding need not be initiated [] for

a person to be a ‘prospective witness’ under section 36.06 of the Penal Code.” Id.

at 615.17 The Court stated, “[T]o require the initiation of official proceedings in

order for one to be a “prospective witness” would not further the apparent policies

underlying section 36.06.” Id. at 614. See also Stewart v. State, 137 S.W.3d 184,

187 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (holding official proceeding

need not be initiated for one to be prospective witness) (citing Morrow, 862 S.W.2d

at 615).

Johnson’s argument in this case essentially mirrors that made by Morrow—

that Truelove was not a prospective witness because the disciplinary was not

17 At the time of Morrow’s alleged offense, section 36.06 of the Texas Penal Code provided as follows: A person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act in retaliation for or on account of the service of another as a public servant, witness, prospective witness, or informant. Morrow v. State, 862 S.W.2d 612, 613 (Tex. Crim. App. 1993). Although the current version of section 36.06 has been expanded upon, section (a)(1) is virtually identical to the version in effect when Morrow was decided.

35 complete and thus no official proceeding was initiated. Johnson argues in his brief

that he “attacked [Truelove] while she was still in the process of drafting her offense

report,” and thus, she had not yet written the disciplinary so she could not be a

“prospective witness.” As the State argues, allowing someone to circumvent a

retaliation charge by injuring a prospective witness as he performs his duties thereby

preventing the prospective witness from completing those duties would lead to an

absurd result. It would also frustrate the statute’s intent to encourage public servants

to perform public duties without fear of retribution.

The evidence indicates the alleged assault was retaliatory. It is undisputed

that Truelove was writing a disciplinary on Johnson. Truelove testified that Johnson

found out about the disciplinary and asked to talk to her about it after class. After

class, and before Truelove could complete the disciplinary, Truelove testified

Johnson pulled her up from her chair by her hair and slammed her against the door,

breaking her glasses.18 She testified Johnson told her, “If you fuck with me, I’ll

fuck with you;” “[I]f you fuck with me, I’ll fuck with your husband;” and “[I]f you

fuck with me, I’ll fuck with your fucking kids.” Truelove testified that afterward,

Johnson grabbed the paper on which she had written the disciplinary, wadded it up,

and threw it into the trash. According to Truelove, Johnson then said he was “going

18 The alleged assault in the retaliation charged occurred when Johnson pulled Truelove’s hair. The alleged digital penetration is not part of the retaliation charge.

36 f[] home” and he left the room. The wadded-up disciplinary, which identified

Johnson, was recovered and admitted into evidence.

Viewing the evidence in the light most favorable to the verdict, as we must,

we hold a rational fact finder could have found beyond a reasonable doubt each

element necessary to support the jury’s finding that Johnson committed the charged

offense of retaliation. We thus hold the evidence was legally sufficient to support

the judgment of conviction for retaliation.

We overrule Johnson’s first issue.

C. Conviction for Assault on a Public Servant

One commits the offense of assault if he “intentionally, knowingly, or

recklessly causes bodily injury to another. . . .” TEX. PENAL CODE § 22.01(a)(1). An

assault is a Class A misdemeanor, but the offense is elevated to a third-degree felony

if committed against “a person the actor knows is a public servant while the public

servant is lawfully discharging an official duty, or in retaliation or on account of an

exercise of official power or performance of an official duty as a public servant[.]”

Id. § 22.01(b)(1).

Johnson’s indictment for assault on a public servant stated that he injured

Truelove by

using his hands to pull the hair of [Truelove], and the defendant did then and there know that the complainant was then and there a public servant, to-wit: a teacher employed by the Windham Independent

37 School District,19 and the complainant was then and there lawfully discharging an official duty to-wit: [Truelove] intended to submit a disciplinary complaint alleging said defendant had violated the rules for offenders incarcerated within the Texas Department of Criminal Justice.

(Footnote added). See TEX. PENAL CODE § 22.01(b)(1). Johnson argues Truelove

cannot establish that Johnson knew about her status as a public servant because she

“concealed” her protected status as a public school teacher given that she was

wearing scrubs and merely proctored a literacy exam before the alleged assault

occurred.20 Johnson states:

That morning she was wearing medical “scrubs,” rather than the professional attire (i.e., business casual) of a classroom teacher. There is no evidence that she was wearing a badge (attached to her medical “scrubs” or attached to a lanyard hanging from her neck) identifying her employment as a teacher with the Windham School District and/or her connection with TDCJ. Moreover, there is no testimony that she struck the traditional pose of a classroom teacher–standing in front of chalkboard and lecturing—or offering individual instruction (tutoring) to an inmate struggling with the course material.

19 “The law is well settled in this state that an independent school district is an agency of the state.” Guin v. State, 209 S.W.3d 682, 684 (Tex. App.—Texarkana 2006, no pet.) (citing Barr v. Bernhard, 562 S.W.2d 844, 846 (Tex. 1978)); Powell v. State, 549 S.W.2d 398, 400 (Tex. Crim. App. 1977) (holding school district is branch of government); see also Moore v. State, 143 S.W.3d 305, 311 (Tex. App.—Waco 2004, pet. ref’d) (holding school district superintendent was “public servant” under Section 1.07(a)(41)(A) of Texas Penal Code). 20 Johnson argues that at most, he should have been charged with misdemeanor assault, because there was no way he could have known Truelove was a public servant.

38 The Penal Code defines “public servant” as “a person . . . employed [as] . . .

an officer, employee, or agent of government[.]” TEX. PENAL CODE 1.07(a)(41)(A).

It is well-settled that a teacher employed by a public school district is a public

servant. See In re J.P., 136 S.W.3d 629, 630 (Tex. 2004) (noting that juvenile who

hit and kicked public school teacher could have been charged, if an adult, with

assault on public servant pursuant to Section 22.01(b)(1) of Penal Code); In re B.M.,

1 S.W.3d 204, 207 (Tex. App.—Tyler 1999, no pet.) (“Public servants, as defined

by the Penal Code, include employees of independent school districts”). For a

person to commit the offense of assault on a public servant, the defendant “must

realize that he is assaulting a teacher, school district employee, police officer, or

firefighter, but [he] does not have to know that teachers, school employees, police

officers, or firefighters are defined by the penal code as public servants.” In re J.L.

O., No. 03-01-00632-CV, 2002 WL 1804951, at *4 (Tex. App.—Austin Aug. 8,

2002, no pet.) (citing TEX. PENAL CODE § 8.03(a) (ignorance of law is no defense)).

Johnson has not cited, and we have not found, any case that holds a person

must wear a school district identification badge or “business casual attire,” stand in

front of a chalkboard and lecture, or offer individual instruction to a student on a

39 given day to be identified as a public school teacher. The cases that Johnson cites

do not support his argument.21

In St. Amand v. State, we held that explicit identification is not necessary

under the statute. No. 01-11-00648-CR, 2013 WL 175705 (Tex. App.—Houston

[1st Dist.] Jan. 17, 2013, pet. ref’d) (mem. op., not designated for publication). In

that case, the appellant was convicted of assault on a public servant after hitting Dill,

a “paraprofessional” at her son’s school. Id. at *1. The appellant and Dill had never

met before the altercation during which the appellant punched Dill in the chest. Id.

The appellant argued on appeal that the State had not satisfied its burden to establish

she had knowledge that Dill was a public servant discharging an official duty

21 Johnson cites several cases in which complainants, some of whom wore identification badges and uniforms, were found to be public servants. None of the cases cited indicate that but for the badge or manner of dress, the complainants would not have been found to be public servants. See Ascencio v. State, No. 11-06- 00341-CR, 2008 WL 2133086, at *2 (Tex. App.—Eastland May 22, 2008, no pet.) (mem. op, not designated for publication) (holding evidence was sufficient to support appellant’s knowledge that nurse who wore a badge and medical scrubs each day and was distributing medication in prison was public servant); Collins v. State, No. 10-07-00222-CR, 2008 WL 2841008, at *3 n.1 (Tex. App.—Waco July 23, 2008, pet. struck) (mem. op., not designated for publication) (noting that record established complainant who wore badge identifying her as TDCJ contract employee was public servant); Carriere v. State, 84 S.W.3d 753, 756–57 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (noting that uniformed officer told appellant he was police officer and holding that officer was public servant); Easter v. State, No. 13-95-055-CR, 1997 WL 33641957, at *1 (Tex. App.—Corpus Christi–Edinburg Feb. 13, 1997, no pet.) (holding that, among other things, “the fact that the complainant was a correction officer in an officer’s uniform, the fact that appellant knew the complainant was a guard and that she was in the cell block” supported conviction for retaliation against public servant).

40 because the evidence showed “Dill never identified herself as a public servant and

was not wearing a badge or some other distinctive clothing or identification[.]” Id.

at *4. Affirming the conviction, we noted that the appellant had cited no authority,

and we could not locate any, “indicating that such an explicit identification is

required.” Id.22

The evidence established that Truelove was hired by the Windham School

District to provide literacy instruction to inmates at the TDCJ’s Ferguson Unit.

Truelove testified that classes are held in the education wing in the Ferguson Unit,

where there are multiple classrooms. She testified that each class is taught by an

assigned teacher, and the teachers are not correctional officers. Prior to the alleged

assault, the inmates were seated in a classroom and Truelove was proctoring a

literacy exam during a literacy class. During the class, Truelove sat at her stool by

her projector or the podium and walked around the room. She took attendance and

at some point, admonished Johnson for not following classroom rules. Truelove

started writing a disciplinary on Johnson. Johnson asked permission to speak to her

about it outside, but Truelove refused. When class was dismissed, Truelove was

sitting at the teacher’s desk. Truelove testified that she was wearing scrubs because

during her training, she observed another teacher at the prison wearing scrubs.

22 Although Johnson does not complain of jury charge error, he notes that the trial court did not instruct the jury that, as a matter of law, a teacher employed by the Windham School District is a public servant.

41 Viewing the evidence in the light most favorable to the verdict, as we must,

we hold a rational fact finder could have found beyond a reasonable doubt that

Johnson knew Truelove was a teacher when he assaulted her and thus that each

element necessary to support the charged offense was established. We thus hold

there was legally sufficient evidence to support the conviction for assault of a public

servant.

We overrule Johnson’s second issue.

Evidentiary Challenges

In his third and fourth issues, Johnson contends the trial court erred by

excluding evidence of the Truelove’s financial condition and by admitting the

audiotape Fontenot recorded of Truelove on the day of the alleged incident. For the

reasons noted below, we overrule both issues.

We review a trial court’s decision to admit or exclude evidence using an abuse

of discretion standard. Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App.

2002); Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016). A trial judge

abuses his discretion when his decision falls “outside the zone of reasonable

disagreement.” Henley, 493 S.W.3d at 83; see also Taylor v. State, 268 S.W.3d 571,

579 (Tex. Crim. App. 2008) (stating trial court abuses discretion only if its decision

42 is “so clearly wrong as to lie outside the zone within which reasonable people might

disagree”).

Even if the trial court erred in admitting or excluding evidence, we will not

reverse unless the appellant establishes harm. When constitutional error is

implicated, “the court of appeals must reverse a judgment of conviction or

punishment unless the court determines beyond a reasonable doubt that the error did

not contribute to the conviction or punishment.” TEX. R. APP. P. 44.2(a). For non-

constitutional error, “[a]ny error, defect, irregularity, or variance that does not affect

substantial rights must be disregarded.” TEX. R. APP. P. 44.2(b).23

B. Evidence of Truelove’s Financial Condition

In his third issue, Johnson argues the trial court abused its discretion in

excluding evidence of Truelove’s finances and of a loan she obtained against any

potential future settlement or judgment in her civil lawsuit. He argues the trial

court’s refusal to allow cross-examination regarding Truelove’s “financial

condition—both as to her bank-account balance and as to a cash advance (loan) taken

23 “A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. U.S., 328 U.S. 750, 776 (1946)).

43 against her [civil] lawsuit,” which he refers to as “potential impeachment evidence,”

implicates his Sixth Amendment Confrontation Clause rights.24

1. Sixth Amendment Confrontation Clause

A defendant has a constitutional right to cross-examine witnesses. U.S.

CONST. amends. VI, XIV; see also Delaware v. Van Arsdall, 475 U.S. 673, 678

(1986). “[A]lthough a defendant’s right to confrontation and cross-examination is

constitutionally safeguarded, it is not absolute.” Cruz–Escalante v. State, 491

S.W.3d 857, 860 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (citing Van Arsdall,

475 U.S. at 678–79). While a defendant may cross-examine a witness “on any

subject reasonably calculated to attack his credibility, such as exposing a motive,

bias or interest,” the trial court has “considerable discretion in determining how and

when bias may be proved, and what collateral evidence is material for that purpose.”

Cruz–Escalante, 491 S.W.3d at 860 (citing Recer v. State, 821 S.W.2d 715, 717

(Tex. App.—Houston [14th Dist.] 1991, no pet.)).

While the motivation of a testifying witness “is of particular relevance,” a

“trial court retains wide latitude to impose reasonable limits on such cross

examination without violating the Confrontation Clause.” Tucker v. State, 771

24 Johnson does not argue that the trial court erred in disallowing extended cross- examination regarding Truelove’s civil lawsuit. Rather, Johnson complains of the trial court’s ruling “to restrict Johnson’s cross-examination of Truelove regarding her dire financial condition.”

44 S.W.2d 523, 531 (Tex. Crim. App. 1988) (citing Van Arsdall, 475 U.S. at 679).25

“[T]he trial court has broad discretion to impose reasonable limits on cross-

examination without running afoul of the Confrontation Clause in order to avoid

harassment, prejudice, confusion of the issues, endangering the witness, or the

injection of cumulative, collateral, or marginally relevant evidence.” Moran v. State,

350 S.W.3d 240, 247 (Tex. App.—San Antonio 2011, no pet.) (citing Van Arsdall,

475 U.S. at 679); see also Carpenter v. State, 979 S.W.2d 633, 634 (Tex. Crim. App.

1998) (“For the evidence to be admissible, the proponent must establish some causal

connection or logical relationship between the pending charges and the witness’ . . .

potential bias or prejudice for the State[.]”).

2. Truelove’s Cash Advance

In seeking admission of testimony and documents concerning the cash

advance payment (loan) Truelove received for her civil suit, Johnson argued to the

trial court that the loan “provide[d] motive” for Truelove to continue pursuing her

allegations against Johnson “because I think all of this is relative to the [civil]

25 Johnson relies on Castillo v. State, 939 S.W.2d 754, 758 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d), noting that the trial court held that evidence of a police officer’s financial interest in making a DWI arrest was relevant. But the appellate court held in Castillo that the trial court did not abuse its discretion in excluding evidence of the officer’s pay because “his decision to make allegedly ‘marginal’ arrests [wa]s too attenuated from any potential financial gain to overcome the risk of confusion of the issues, embarrassment, harassment, and undue delay.” Id. at 759.

45 lawsuit, the fact that one month after the incident, when she says she was so upset,

she’s on the courthouse steps telling everybody she’s filing a lawsuit.”

The trial court at first held Johnson could discuss “the fact she got a loan,”

explaining:

I’ll allow that, but you know, I’m going to cut this off short if it gets too far afield, so the fact that she may have gotten some advance is fine with me, or I’m going to allow that testimony, but I’m not going to allow any documents or anything like that in, so she can testify that she received an advance on the litigation and that amount, and what she just testified she used it for.

But after further argument and learning Truelove was not required to pay back the

loan even if she did not prevail in her civil suit, the trial court disallowed evidence

of the loan.26 The trial court explained it had allowed admission of evidence

concerning Truelove’s worker’s compensation benefits because the State had

opened the door, but that it would not allow counsel to “get into the loan, because

that’s just too far afield.” The trial court held:

I don’t care about her financial condition. The fact that she’s getting money for an alleged injury on the job, to me, covers all that. What she did with her money, or what she’s spending her money on, I don’t think is relevant to this particular Defendant on these particular allegations.

26 During the offer of proof, Truelove testified outside the presence of the jury that she received a $10,000 “loan” in connection with her civil lawsuit. But as Truelove testified, the money was an advance on any future settlement or judgment in the civil lawsuit, rather than a loan. Truelove testified she did not have to pay back the money, regardless of whether she prevailed in her civil lawsuit.

46 The trial court thus permitted Johnson to cross-examine Truelove about her pending

civil lawsuit but it denied admissibility of any documents or inquiry concerning the

cash advance loan Truelove received from her civil lawsuit.

In light of the admitted testimony regarding Truelove’s pending civil litigation

and Truelove’s testimony that she would not have to repay the advance, we conclude

the trial court was within its discretion in excluding cross-examination about

Truelove’s loan. See Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000)

(noting trial court has “broad discretion” to reasonably limit cross-examination “to

avoid harassment, prejudice, confusion of the issues, endangering the witness, and

the injection of cumulative or collateral evidence”).

We overrule Johnson’s third issue.

3. Truelove’s Bank Account

Johnson also complains of the trial court’s exclusion of testimony regarding

Truelove’s financial condition. Johnson argues that Truelove “was cash-strapped

and desperately needed the jury to convict Johnson of the crimes for which he was

on trial in order to shore up the claims in her [civil] lawsuit against the prison

system.” According to Johnson, the trial court’s ruling disallowing him to question

Truelove about her financial condition violated his right to confrontation under the

Sixth Amendment because Truelove is a “financial opportunist” and the excluded

evidence would have shown she was “in desperate financial straits.”

47 But the record does not reveal that the trial court disallowed Johnson to

question Truelove generally about her “financial condition.” The trial court allowed

Johnson to question Truelove about her worker’s compensation benefits and a

second job she had with a skin care company.27 Johnson asked Truelove about the

amount and timing of her worker’s compensation benefits and payments from

Windham School District after she left her teaching job there. Johnson also asked

Truelove about her employment status.

The jury also learned during the trial about Truelove’s pending civil lawsuit

against TDCJ and the Windham School District. The trial court permitted Johnson

to ask Truelove about her civil lawsuit and also allowed introduction of a statement

Truelove made from the courthouse steps to the media requesting that charges be

filed against Johnson. Although the trial court did not allow the admission of

Truelove’s letter to Governor Abbott, the trial court allowed Johnson to question

Truelove about the substance of the letter. Johnson was also able to question

Truelove about her civil suit, and the jury heard Truelove testify that her civil case

was “on hold” and “not moving forward” until after the criminal trial was over.

We thus do not agree that the trial court disallowed Johnson to cross-examine

Truelove generally about her financial condition. Rather, the court excluded

27 Truelove testified that she did not recall whether she was still employed with the skin care company while she was receiving worker’s compensation benefits.

48 Truelove’s bank records, as well as testimony concerning such records, including

the alleged fact Truelove was “overdrawn.”28 The trial court denied admission of

the bank records and related testimony, stating that what Truelove “did with her

money, or what she’s spending her money on, I don’t think is relevant” to Johnson

“on these particular allegations.”

In light of the admitted evidence, the jury could have inferred it would be in

Truelove’s best interest with respect to the civil lawsuit if Johnson was convicted in

the criminal lawsuit. Indeed, during Johnson’s closing, his counsel said as much.

Reminding the jury that Truelove’s civil case was “on hold” pending the outcome of

the criminal case, Johnson’s counsel argued, “I take that to mean whatever happens

today will affect whether or not she gets money in her civil lawsuit.”

We are not bound or persuaded by the Illinois appellate case Johnson cites for

the proposition that a trial court should allow a defendant to explore a witness’

financial condition on cross-examination in a criminal trial without bounds. In that

case, People v. Greer, 689 N.E.2d 134 (Ill. App. 1997), testimony revealed that the

state helped a witness move from the neighborhood where a murder occurred by

28 Johnson does not specifically complain of the trial court’s exclusion of Johnson’s banking documents. Nor did Johnson make an offer of proof discussing the contents of the boxes containing the alleged bank documents or what would have been elicited from the documents. See TEX. R. EVID. 103(a)(2) (“A party may claim error in a ruling to . . . exclude evidence only if the error affects a substantial right of the party and . . . a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.”).

49 getting him a moving van and paying for his stay in a hotel during the move. Id. at

135. Holding that the issue was “collateral,” the trial court stopped the defense from

cross-examining the witness on “the depth of his financial distress and the extent of

his desire to move from the neighborhood in which the crime occurred.” Id. at 136.

The defense hoped the evidence would establish that the help the witness received

had induced him to implicate the defendant. Id. The defense unsuccessfully

attempted to elicit testimony to show the witness was biased toward the State

because he had wanted to move for some time but could not do so for financial

reasons, and he had not paid real estate taxes for two years. Id. The defendant was

convicted.

On appeal, the Illinois Court of Appeals held the trial court erred in

disallowing cross-examination that would have allowed the defendant to develop a

theory of impeachment—that “the help [the witness] received from the State was

sufficient to induce him to implicate the defendant in the victim’s death.” Id. The

appellate court noted that evidence the witness was behind in his taxes and that he

had wanted to leave the neighborhood for years but had been unable to afford a move

was not collateral to whether the witness would testify falsely to obtain help moving.

Id.

50 Unlike in Greer, there was no argument in this case that the State provided

financial motivation for Truelove to testify against Johnson.29 Moreover, Truelove’s

bank records and the corresponding testimony Johnson sought to elicit—that

Truelove’s bank account had been overdrawn—was collateral and further

cumulative, given that the jury already knew Truelove stood to benefit financially if

her civil action was successful. And as the State further notes, Johnson did not argue

that Truelove “ever had financial troubles prior to her assault and consequently her

inability to work.” (Emphasis in original.)30

Given the “wide latitude” the trial court has in determining whether to admit

testimony to prove bias, we hold the trial court did not abuse its discretion in refusing

29 Greer also appears to be limited to certain facts not present here: “According to the Illinois Supreme Court, when the defense theory is that the defendant has been framed and the witness who led the police to the defendant has a motive to testify falsely, the evidence to show that motive is ‘hardly collateral.’” People v. Greer, 689 N.E.2d 134, 136 (Ill. App. 1997) (emphasis added) (citing People v. Gonzalez, 472 N.E.2d 417, 420 (Ill. 1984)). 30 Johnson’s reliance on McDaniel v. State, 3 S.W.3d 176 (Tex. App.—Fort Worth 1999, pet. ref’d), also is misplaced. In McDaniel, the court of appeals held the defendant in a forgery case should have been allowed to cross-examine her ex- husband, the State’s only witness, about an outstanding child support arrearage judgment in her favor, which the defense contended gave him “a reason to slant his testimony and to say things that are not true to get back at [the defendant] because she’s the one that has the judgment against him.” Id. at 179. The appellate court held that the State’s case would have been “weakened considerably” if the jury had been told of the child support arrearage judgment. Id. at 182. In the present case, the jury heard testimony regarding the pending civil lawsuit from which Truelove stood to gain if she prevailed. Thus, we do not find the State’s case would have been weakened by learning Truelove’s bank account had been overdrawn or learning about an advance payment Truelove was not required to pay back.

51 to allow testimony about Truelove’s bank account or the fact she had been

overdrawn. See Lopez, 18 S.W.3d at 222 (noting trial court’s “broad discretion” to

limit cross-examination without running afoul of defendant’s Sixth Amendment

rights).

C. Admission of Audiotaped Recording

In his fourth issue, Johnson argues the trial court erred in admitting a ten-

minute audio recording of Truelove recorded by Fontenot on the day of the alleged

assault. In the ten-minute audio recording, Truelove is heard sobbing and stating

repeatedly that she wants to go home, she wants someone to call her son, and she

did nothing wrong. Fontenot did not question Truelove about the alleged assault

during the audio recording and Truelove did not discuss the alleged assault, except

to say that her head hurt, and that:

[Johnson] said don’t fuck with him. He said he would fuck with me. He said he would find me, that he would fuck with my husband—I don’t have a husband—then he said I’ll fuck with your fucking kids. So I want to go home.

Fontenot testified she recorded Truelove “[i]n case she said something that

[Fontenot] would need to know for the investigation. I wasn’t going to question her

about what happened at that time until at the time she was ready to talk, but in case

a name or something came up that we needed to know for our investigation.”

Truelove did not identify her alleged assailant during the recording. 52 Johnson objected to admission of the audio recording based on Rule of

Evidence 403, which precludes the admission of relevant evidence whose probative

value is substantially outweighed by a danger of unfair prejudice. TEX. R. EVID. 403.

In objecting to admission of the tape, Johnson’s counsel stated:

[T]his tape will not add any, or very little probative value to whether or not this offense occurred. It’s basically being shown to the jury with hitting them over the head with how horrible this experience was for her. It doesn’t prove that the experience actually occurred. It just proves that she’s crying and screaming, and my concern is it’s going to mislead the jury. It’s going to appeal to their emotions without adding any factual evidence that’s going to assist them in arriving at their decision, so I object to it’s being admitted.

The State argued that the recording “captured Fontenot’s initial interaction with

Truelove. The recording captured Truelove being distraught after the assault, her

immediate reaction to the assault . . . .”

In a Rule 403 analysis, the presumption is that the probative value of the

challenged evidence outweighs the prejudicial effect. Calvert v. State, No. AP-

77,063, 2019 WL 5057268, at *22 (Tex. Crim. App. Oct. 9, 2019) (not designated

for publication); see also Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App.

1997) (“In keeping with the presumption of admissibility of relevant evidence, there

is a presumption that relevant evidence is more probative than prejudicial.”). Rule

403 “should be used sparingly to exclude relevant, otherwise admissible evidence

that might bear on the credibility of either the defendant or complainant in such ‘he

said, she said’ cases [involving sexual assault].” Hammer v. State, 296 S.W.3d 555, 53 562 (Tex. Crim. App. 2009)). In a Rule 403 analysis, “a reviewing court is to reverse

the trial court’s judgment ‘rarely and only after a clear abuse of discretion.’” Mozon

v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999) (quoting Montgomery v. State,

810 S.W.2d 372, 389 (Tex. Crim. App. 1991)). Rule 403 only concerns “unfair”

prejudice. Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018).

“Evidence is unfairly prejudicial if it has the capacity to lure the fact-finder into

declaring guilt on a ground different from proof specific to the offense charged.” Id.

In conducting a Rule 403 balancing test, the trial court must consider the

following non-exclusive factors:

(1) how probative the evidence is, (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent’s need for the evidence.

Colone v. State, 573 S.W.3d 249, 266 (Tex. Crim. App. 2019). The factors “may

well blend together in practice.” Gigliobianco v. State, 210 S.W.3d 637, 642 (Tex.

Crim. App. 2006).

1. First Factor: Probative Value of the Evidence

For the first factor, the State argued that the audiotape

clearly is probative to what happened that day, and after [] one of the witnesses testified and attacked the character of the victim, it became even more probative as to what actually transpired after that. . . . considering the charges in the indictment, the imminence of the threat and how she felt threatened, I think this helps corroborate that evidence ....

54 Johnson argued in the trial court that the tape is “inflammatory and there is no reason

for it.” He stated, “Given the witnesses that we’ve already heard, we know that she

was hysterically crying and upset. . . . It doesn’t prove that the experience actually

occurred. It just proves that she’s crying and screaming, and my concern is it’s going

to mislead the jury.” He argued the tape would “appeal to their emotions without

adding any factual evidence that’s going to assist them in arriving at their decision.”

On appeal, Johnson argues the audiotape was not probative because during the

recording, Truelove did not identify her alleged attacker, say that she was attacked,

or explain why she was inconsolable.

Johnson premised his defense on Truelove’s alleged untruthfulness. We

therefore hold the audiotape recording was probative of Truelove’s credibility and

that Johnson opened the door with respect to admission of the recording by attacking

Johnson’s credibility.

This factor weighs in favor of admission. See Hayden v. State, 296 S.W.3d

549, 554 (Tex. Crim. App. 2009) (“A party opens the door by leaving a false

impression with the jury that invites the other side to respond.”).

2. Second Factor: Effect on the Jury

In examining the second factor, we consider the potential of the evidence to

impress the jury in an irrational way. When the audiotape was admitted, the jury

had already heard testimony from Truelove and four other witnesses, all of whom

55 testified that Truelove was upset immediately following the alleged assault. Bishop

testified that when she found Truelove, she “was sobbing, very—kind of hysterical.”

Officer Cunningham testified that when she first saw Truelove, “she was crying, she

was hysterical[.]” Pickens testified that when Truelove arrived at the hospital, “she

was upset, she was anxious, she was crying.” Officer Jordan testified that when he

arrived at Truelove’s classroom, he saw that “[s]he was visibly upset. She was

crying.” And when Fontenot first encountered Truelove after the alleged assault,

“she was crying, she was obviously upset and crying[.]”

In light of this testimony from five witnesses before the audiotape was played,

it is unlikely the audiotape recording of Truelove crying “impress[ed] the jury in an

irrational way.” This factor weighs in favor of admission. Cf. Martinez v. State, No.

04-14-00652-CR, 2015 WL 6736781, at *5 (Tex. App.—San Antonio Nov. 4, 2015,

pet. ref’d) (mem. op., not designated for publication) (stating in Rule 403 analysis

that “[b]ecause L.B.’s testimony about the pornographic materials had already been

presented before the jury, it is not likely that the introduction and admission of the

actual materials in Martinez’s possession would have impressed the jury in an

unfairly prejudicial way”).

3. Third Factor: Time to Develop Evidence

The audiotape was ten minutes long. The trial lasted three days. The

reporters’ record has one page reflecting Fontenot’s testimony regarding the tape,

56 while the entire trial transcript is more than five hundred pages. Given the short

amount of time needed to develop evidence of the audiotape, the third factor weighs

in favor of the tape’s admission. See Gaytan v. State, 331 S.W.3d 218, 228 (Tex.

App.—Austin 2011, pet. ref’d) (holding testimony that occupied thirteen pages of

200-plus-page trial transcript weighed in favor of admission under Rule 403); Lane

v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996) (holding in Rule 403 analysis

that extraneous-offense testimony that amounted to “less than one-fifth” of trial

testimony was not excessive and weighed in favor of admission).

4. Fourth Factor: Need for the Evidence

The final factor considers the State’s need for the evidence. In light of the

testimony questioning Truelove’s account of the assault and her truthfulness, we

agree the State had some need for the evidence to bolster Truelove’s testimony. But

the State’s need was tempered by the fact five State witnesses testified that Truelove

was very upset after the alleged assault, and by the fact Truelove did not provide any

details about the alleged assault during the recording other than stating:

[Johnson] said don’t fuck with him. He said he would fuck with me. He said he would find me, that he would fuck with my husband—I don’t have a husband—then he said I’ll fuck with your fucking kids. So I want to go home.

Truelove testified about the same statement earlier in the trial without objection from

defense counsel. This factor weighs against admission. See Gomez v. State, No. 03-

05-00730-CR, 2007 WL 3306495, at *12 (Tex. App.—Austin Nov. 9, 2007, pet.

57 ref’d) (mem. op., not designated for publication) (holding State’s need for photos of

track marks in defendant’s arm weighed against admissibility under Rule 403 test

“as there was already sufficient evidence in the record connecting [defendant] to the

criminal activity”).

We conclude the trial court reasonably could have concluded that the

probative value of the audiotape was not substantially outweighed by the danger of

unfair prejudice and that the trial court did not abuse its discretion in admitting the

recording. See TEX. R. EVID. 403.

We overrule Johnson’s fourth issue.

Conclusion

We affirm the trial court’s judgment.

Veronica Rivas-Molloy Justice

Panel consists of Chief Justice Adams and Justices Landau and Rivas-Molloy.

Do not publish. TEX. R. APP. P. 47.2(b).