                                        COURT OF APPEALS
                                     EIGHTH DISTRICT OF TEXAS
                                          EL PASO, TEXAS


     DANNY THOMAS MOLINA,                              §
                                                                        No. 08-16-00318-CR
                        Appellant,                     §
                                                                           Appeal from the
     v.                                                §
                                                                         112th District Court
     THE STATE OF TEXAS,                               §
                                                                       of Upton County, Texas
                        Appellee.                      §
                                                                     (TC# 16-03-U1125-DSM)
                                                       §


                                               OPINION

          Danny Thomas Molina appeals his conviction on one count of delivery of cocaine in an

amount of less than one gram. 1 In two issues, Molina contends (1) the trial court erred in

compelling Molina to show tattoos on his arm and neck to the jury during trial; and (2) the evidence

was legally insufficient to establish Molina’s identity based solely on a voice identification. We

affirm.

                                             BACKGROUND

          On June 13, 2014, during the evening hours, Brandon Busby, a reserve deputy with the

Upton County Sherriff’s Department, was assigned to work undercover buying narcotics in


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    See TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(b) (West 2017) and 481.102(3)(D) (West Supp. 2017).
McCamey, Texas. Deputy Busby wore an audio recorder to record conversations he had while

working. Driving a pickup truck, Deputy Busby pulled into a nearby gas station and approached

a man pumping gas. Busby described the man he saw as “a heavier[-]built Hispanic male with

tattoos on his neck and both arms,” who was approximately twenty-five to thirty-five years old.

Busby approached and started a conversation asking whether “he knew where I could get any

work.” Busby explained the phrase he used, which he had learned from his training, was

commonly used language, or “lingo,” for knowing about buying narcotics.

       Initially, the man reacted by asking if he was referring to tattoo work. Deputy Busby

laughed then explained that he wanted to buy “ice,” which referred to methamphetamines. The

man responded saying he might have some “candy,” a slang for cocaine. Eventually, the man

asked how much money Deputy Busby had on him. When Deputy Busby replied that he had one

hundred dollars, the man then reached into his black Escalade and pulled out a white rolled up

sack or baggie. As Busby handed him the one hundred dollars, he handed over the baggie. As

the two parted ways, Deputy Busby noted his license plate out loud on the audio recording. Later,

Deputy Busby transferred the baggie and audio recorder to Deputy Dusty Kilgore, another officer

who also worked for the Upton County Sheriff’s Office.

       At trial, Deputy Busby identified the audio recording of the conversation he had made on

the evening in question and it was marked for evidence. Deputy Busby testified he had listened

to it earlier and he recognized his own voice on the recording. Without objection, the State

admitted the recording and played it for the jury. On the recording, Deputy Busby mentioned the

man he spoke to had tattoos on his neck and arm. At trial, when asked to identify the man he had

spoken to on the night in question, Deputy Busby said he was not able to identify him in the


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courtroom. The State then asked the court to direct Molina to remove his shirt so that Deputy

Busby could confirm the tattoos he had mentioned in the recording and in his testimony. Before

the court responded, defense counsel requested an opportunity to ask questions outside the

presence of the jury. On voir dire, Deputy Busby stated that he generally recalled seeing tattoos

on the man’s neck and both arms, but he could not recall what kind they were, what color they

were, or how many he had seen on the occasion. He stated that if he saw them during the trial, he

could not be sure he could recognize them.

        Following the voir dire examination, defense counsel questioned the need for Molina to

remove his shirt given that Deputy Busby stated he could not recognize the tattoos he had seen

generally. He argued that if the trial court ordered Molina to remove his shirt, Deputy Busby

would likely say, “yeah, those are the ones” without actually knowing whether those tattoos

actually matched the tattoos of the person arrested for the commission of the offense. The

prosecutor responded that the jury should be able to see that Molina fit the general description of

a heavyset Hispanic male with tattoos on his neck and arms. Following argument, the trial court

directed Molina to show the jury his arms and neck while Deputy Busby was not present, and the

State agreed it would not ask Deputy Busby any questions regarding his identification of Molina’s

tattoos. In the presence of the jury, but while Deputy Busby remained out of the courtroom, the

trial court asked Molina to roll up his shirt sleeves to expose his forearms, and to turn down his

collar to show tattoos on his neck. Molina complied with the court’s instructions. Before Deputy

Busby then completed his testimony, the State admitted two photographs which he identified as

depicting the white pickup truck he drove and the black Escalade he saw at the scene on the evening

at issue.


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       Deputy Kilgore later testified that when he ran the license plate number given by Deputy

Busby, the results indicated that the vehicle was registered to a man Deputy Kilgore knew from

previous experiences to be Molina’s father. Deputy Kilgore also testified that Molina was known

to drive a black Escalade, that Molina had previously been stopped by law enforcement while

driving the vehicle with the same license plate, and that he listened to the audio recording and

recognized Molina’s voice on it because he was familiar with it from previous law enforcement

interactions with Molina.

       Before resting, the State presented testimony from Marissa Gomez, regional laboratory

manager of the Texas Department of Public Safety laboratory in Midland, who testified that she

analyzed the substance in the baggie and it tested positive for cocaine weighing less than one gram.

The jury convicted Molina and assessed two years’ imprisonment as punishment.

                                          DISCUSSION

       Molina challenges his conviction in two issues. First, he argues that the trial court erred

by compelling Molina to expose his arms and neck during the trial. Second, he contends that the

evidence was legally insufficient to prove Molina’s identity as the man who sold Deputy Busby

cocaine on the evening at issue. We will address Molina’s sufficiency challenge first.

                                        Legal Sufficiency

       In a legal sufficiency challenge, we determine whether any rational jury could have found

the essential elements of the charged offense beyond a reasonable doubt after viewing the evidence

in the light most favorable to the jury’s verdict. Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim.

App. 2013) (citing Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d

560 (1979)). Evidence may be legally insufficient when the record “contains either no evidence


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of an essential element, merely a modicum of evidence of one element, or if it conclusively

establishes a reasonable doubt.” Id. (citing Jackson, 443 U.S. at 320, 99 S.Ct. at 2789). We may

not re-weigh evidence or substitute our judgment for that of the fact finder. Williams v. State, 235

S.W.3d 742, 750 (Tex. Crim. App. 2007). Further, we presume that the jury resolved any

conflicting inferences from the evidence in favor of the verdict, and we defer to that determination

because the jurors are the exclusive judges of the facts, the credibility of the witnesses, and the

weight to be given to their testimony. Merritt v. State, 368 S.W.3d 516, 525–26 (Tex. Crim. App.

2012); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).

       Here, Molina argues that the evidence presented was insufficient to establish his identity

to justify a verdict of guilt. Molina contends that only Deputy Kilgore identified Molina’s voice

on the audio recording. With his testimony, however, he contends that Kilgore failed to testify

how long it had been since the last time he had heard Molina’s voice before trial. Molina argues

the jury had insufficient information to judge the credibility of Deputy Kilgore’s testimony. We

disagree.

       Texas Rule of Evidence 701 allows testimony by lay witnesses when their opinion about a

matter is rationally based on perceptions of the witness and the lay opinion is helpful to determine

a fact in issue. See TEX. R. EVID. 701. Here, Molina’s identity as the person who sold narcotics

to Deputy Busby was at issue. On the identification of the voice, Deputy Kilgore testified that he

listened to the recording, and based on his personal knowledge and familiarity with Molina’s voice,

he recognized him conversing with Deputy Busby. Kilgore testified he had personal experiences

with Molina in roughly fifteen law enforcement encounters including hearing Molina’s voice on a

recording.


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        We conclude that testimony from Deputy Kilgore met both requirements of admissibility.

First, his opinion qualified as being rationally based on his perception from having experienced

many encounters with Molina. See TEX. R. EVID. 701. And, second, his testimony was helpful

to identify the second voice on the recording. See id. Moreover, Rule 701 does not require that

the proponent of lay witness testimony establish when the witness last heard the voice being

identified. See id. The State, therefore, was not required to elicit information from Deputy

Kilgore about the last time he heard Molina’s voice before trial. See id. As the fact finder, the

jury was free to make a credibility determination regarding Deputy Kilgore’s testimony, and to

assign whatever weight they chose to his identification of Molina’s voice on the recording. See

Merritt, 368 S.W.3d at 525–26; Brooks, 323 S.W.3d at 899.

        We disagree with Molina’s contention that testimony amounting to a witness’s assertion

that “I know that voice, I’ve heard it before,” is insufficient evidence to allow a witness to identify

a voice on an audio recording. In McInturf v. State, 544 S.W.2d 417, 419 (Tex. Crim. App. 1976),

the Texas Court of Criminal Appeals held that voice identification constitutes direct evidence.

McInturf explained, “[v]oices differ and although the divergence between one voice and another

may be slight, nevertheless, the person who receives a telephone call many times identifies the

voice of the caller the moment it is heard.” Id. Viewing the evidence in the light most favorable

to the verdict, we conclude that the evidence present in the record was sufficient to enable a rational

jury to find that Molina was identified as the man who sold cocaine to Deputy Busby beyond a

reasonable doubt.      See Britain, 412 S.W.3d at 520; McInturf, 544 S.W.2d at 419 (voice

identification is sufficient in and of itself to prove identity).

        Molina’s second issue is overruled.


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                                           Tattoo Issue

       We now turn to whether the trial court erred by directing Molina to expose his arms and

neck to allow the jury to observe his tattoos. While the exact nature of Molina’s argument is not

entirely clear, we construe the argument as being grounded in Texas Rule of Evidence 403, which

excludes evidence whose probative value is substantially outweighed by the risk of unfair

prejudice. See TEX. R. EVID. 403. We also construe his complaint as one asserting that the trial

court’s actions violated Molina’s privacy interests.

       We first consider Molina’s Rule 403 argument. A trial court’s decision to require a

defendant to display tattoos on his body in the presence of the jury is reviewed for an abuse of

discretion. See, e.g., Silvestre v. State, 893 S.W.2d 273, 274 (Tex. App.—Houston [1st Dist.]

1995, pet. ref’d). To determine whether the trial court’s actions violated Rule 403, we must

consider the following factors by weighing: “(1) the inherent probative value of the evidence and

(2) the State’s need for that evidence against (3) any tendency of the evidence to suggest a decision

on an improper basis, (4) any tendency to confuse or distract the jury from the main issues, (5) any

tendency to be given undue weight by a jury that has not been equipped to evaluate the probative

force of the evidence, and (6) the likelihood that presentation of the evidence will consume an

inordinate amount of time or be needlessly cumulative.” Knight v. State, 457 S.W.3d 192, 204

(Tex. App.—El Paso 2015, pet. ref’d) (quoting Gigliobianco v. State, 210 S.W.3d 637, 641–42

(Tex. Crim. App. 2006)).

       Here, the probative value of the evidence was high because Deputy Busby testified that the

man he met and recorded had tattoos on his neck and arms, which were a distinguishing

characteristic relevant to establishing his identity. The State’s need for the evidence was also high


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because Molina’s identity was a contested issue at trial. In contrast, the tendency of the evidence

to suggest a decision on an improper basis was low because the presence of tattoos is unlikely to

inflame the passions of the jury. Likewise, there was little chance that the jury would be confused

by the presence of Molina’s tattoos, or that the jury would give undue weight to their presence.

Finally, the amount of time taken to present the evidence was minimal. As such, we conclude

that the trial court did not violate Rule 403 or abuse its discretion by directing Molina to show the

jury his tattoos. See Silvestre, 893 S.W.2d at 274–75 (trial court did not violate Rule 403 by

compelling defendant to display the tattoos on his arms to the jury where defendant’s identity was

at issue).

        We also disagree with Molina’s contention that his privacy interests were unreasonably

violated when the trial court compelled him to expose his arms and neck to show his tattoos to the

jury. Tattoos are no less an identifying marker than the color of a person’s eyes, the sound of his

voice, or the color of his hair, which are characteristics a defendant can be compelled to disclose

to a jury. Sauceda v. State, 309 S.W.3d 767, 769 (Tex. App.—Amarillo 2010, pet. ref’d) (panel

op.). As such, the trial court did not abuse its discretion when it compelled Molina to show the

jury his arms and neck, especially when his identity was at issue in the case, and the trial court’s

actions did not violate Molina’s privacy interests. See id.; see also Silvestre, 893 S.W.2d at 274.

        Molina’s first issue is overruled.

                                             CONCLUSION

        We affirm the judgment of the trial court.


                                               GINA M. PALAFOX, Justice
September 12, 2018


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

(Do Not Publish)




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