Case Number: 08-14-00207-CR

Judge: YVONNE T. RODRIGUEZ

Court: COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

Plaintiff's Attorney: Hon. Faith Johnson
Hon. Tara Cunningham

Defendant's Attorney: Hon. Nanette Hendrickson

Description: 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



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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.
DISCUSSION
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



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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).
Analysis
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



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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



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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.
Analysis
“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



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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



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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



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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
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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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.

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

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