                         NUMBER 13-13-00355-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


JONNIE RAY JOHNSON,                                                       Appellant,

                                          v.

THE STATE OF TEXAS,                                                       Appellee.


                 On appeal from the 2nd 25th District Court
                       of Gonzales County, Texas.


                         MEMORANDUM OPINION

               Before Justices Rodriguez, Garza, and Perkes
                Memorandum Opinion by Justice Rodriguez
      Appellant Jonnie Ray Johnson challenges his conviction by a jury for robbery.

See TEX. PENAL CODE ANN. § 29.02(a)(1) (West 2011). By one issue, Johnson argues

that the trial court erred in admitting testimony regarding his efforts to resist arrest

because such testimony was irrelevant and inadmissible evidence of an extraneous
offense or bad act. See TEX. R. EVID. 402, 403, 404(b). We affirm.

                                           I. Background1

        Johnson was indicted in connection with the robbery of a liquor store in Gonzales,

Texas. See TEX. PENAL CODE ANN. § 29.02(a)(1). He pleaded not guilty, and the case

was tried to a jury.

        At trial, there was evidence that Johnson entered the liquor store during the early

evening of January 23, 2012. Johnson tried to enter the area behind the cash register

counter, and the store clerk attempted to block his path. Johnson told the clerk "this is a

robbery," pushed the clerk into a shelf, picked the cash register up off the counter, and

fled the store on foot carrying the cash register. The clerk called the police, and when

they arrived, the clerk pointed in the direction in which Johnson had fled. The police

located Johnson, with the cash register, in the backyard of a house near the liquor store.

The officers testified that Johnson resisted their attempts to arrest him. He struggled

against the officers and would not allow them to handcuff him. The officers testified that

they were required to pepper spray and then use a taser on Johnson in order to subdue

him.

        After the close of evidence, the jury returned a guilty verdict. Punishment was

tried to the court, which assessed a sentence of life imprisonment as a result of multiple

prior felonies committed by Johnson. See id. § 12.42 (West Supp. 2012). This appeal

followed.



        1
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
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                                II. Standard of Review

       We review a trial court's decision to admit or exclude evidence under an abuse of

discretion standard. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006)

(citations omitted). "If the trial court's decision was within the bounds of reasonable

disagreement, the appellate court should not disturb its ruling." Id.

                                     III. Discussion

       By one issue, Johnson argues that the officers' testimony about the details of his

arrest was both irrelevant and inadmissible extraneous bad acts evidence. See TEX. R.

EVID. 401–03, 404(b). However, at trial, defense counsel objected only on the grounds

of relevance, so Johnson's argument under rule 404(b) was not preserved for our review.

See TEX. R. APP. P. 33.1(a)(1). We will address only Johnson's argument under rules

401, 402, and 403.

       Rule 402 provides that "[a]ll relevant evidence is admissible, except as otherwise

provided by Constitution, by statute, by these rules, or by the other rules prescribed to

statutory authority. Evidence which is not relevant is not admissible." TEX. R. EVID. 402.

"'Relevant evidence' means evidence having any tendency to make the existence of a

fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence." TEX. R. EVID. 401. Rule 403 provides

that, "[a]lthough relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the

jury, or by considerations of undue delay, or needless presentation of cumulative

evidence." TEX. R. EVID. 403.


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      Johnson argues that "[t]he elements of robbery do not include resisting arrest to

the point of being pepper sprayed or tased. This testimony was completely unnecessary

and irrelevant to the offense of robbery." We disagree.

      Texas law has long recognized that evidence of flight or escape may be
      admissible evidence from which an inference of guilt may be drawn, subject
      only to the requirement of relevancy to the offense under prosecution. See
      Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994); Burks v. State,
      876 S.W.2d 877, 903 (Tex. Crim. App. 1994); [Cantrell v. State, 731 S.W.2d
      84, 92 (Tex. Crim. App. 1987)]; Foster v. State, 779 S.W.2d 845, 859 (Tex.
      Crim. App. 1989); Rumbaugh v. State, 629 S.W.2d 747, 752 (Tex. Crim.
      App. 1982); Lee v. State, 176 S.W.3d 452, 462 (Tex. App.—Houston [1st
      Dist.] 2004), aff'd on other grounds, 206 S.W.3d 620 (Tex. Crim. App.
      2006). . . . In addition, the State is generally "'entitled to show
      circumstances surrounding an arrest,'" because evidence of these
      circumstances, including the defendant's resistance, may also demonstrate
      . . . how police located, pursued, and apprehended the defendant. Cantrell,
      731 S.W.2d at 92 (quoting Maddox v. State, 682 S.W.2d 563, 564 (Tex.
      Crim. App. 1985)).

Burks v. State, 227 S.W.3d 138, 148 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd).

Here, the complained-of testimony was admissible as evidence of the circumstances

surrounding Johnson's arrest. It was evidence relevant to Johnson's flight from the

scene, which was a circumstance indicative of guilt. The testimony encompassed only a

few pages of the multiple-volume reporter's record of a two-day trial and was not

particularly emphasized by the State. In short, having reviewed the testimony in the

context of the record, we conclude that its probative value was not outweighed by any

danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, or

needless presentation of cumulative evidence. The trial court did not abuse its discretion

in admitting the testimony. Johnson's issue is overruled.




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                                    IV. Conclusion

       We affirm the judgment of the trial court.



                                                     NELDA V. RODRIGUEZ
                                                     Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 16th
day of January, 2014.




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