                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-17-00021-CR


BRANDON IVORY JOHNSON                                                 APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


                                      ----------

      FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY
                   TRIAL COURT NO. 1471551

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                         MEMORANDUM OPINION1

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      A jury convicted appellant Brandon Ivory Johnson of assaulting his

girlfriend, B.H. (Brittany).2 He asks us to reverse the conviction. In one point, he


      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code Ann. § 22.01(a)(1), (b)(2) (West Supp. 2017). To
protect B.H.’s anonymity, we use an alias. See McClendon v. State, 643 S.W.2d
936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
contends that the trial court abused its discretion by overruling his objection to

the admission of a patrol car’s dash-camera recording that, in his view, was

irrelevant, inflammatory, and unfairly prejudicial. We conclude that the record

does not establish harm from any error in admitting the recording, and we

therefore affirm the trial court’s judgment.

                                    Background

       Brittany had a romantic relationship with Johnson in 2016. By September

2016, she became pregnant with his child. One morning that month, Brittany and

Johnson began to argue about something that she saw on his phone.               She

walked outside her apartment and asked him to leave; he responded by pushing

her against a wooden gate. She fell and later felt pain. A neighbor called the

police, and an officer who responded noticed that Brittany was nervous and

fearful.

       The State charged Johnson with assaulting Brittany. At a jury trial, he

pleaded not guilty.    After receiving the parties’ evidence and arguments and

deliberating for approximately thirty minutes, the jury convicted Johnson. The

jury heard arguments concerning his punishment and assessed ninety days’

confinement. The trial court sentenced him accordingly, and he brought this

appeal.

                           Admission of the Recording

       In his only point, Johnson contends that the trial court abused its discretion

by admitting, over his objection, the dash-camera recording.         The recording


                                          2
contains nondescript video from the dash camera along with off-camera audio of

a conversation between a police officer and Johnson. In the conversation, an

officer asked Johnson whether they could discuss a call that the police had

received. Johnson, replied, “For what?” The officer stated that the police had

“just got[ten] a call, that’s all.” The officer asked for Johnson’s last name, and he

gave it. Johnson asked whether he was under arrest. The officer told Johnson

that he was being detained for a family violence investigation, and Johnson

protested that he had not done anything wrong. The officer told Johnson that he

wanted to “do [his] job and leave.” He gave Johnson the option of cooperating

“civilly or . . . just [being placed] in handcuffs.”

       When the officer asked for Johnson’s first name, Johnson instead stated

that he needed to talk to a lawyer and denied committing the assault. Johnson’s

responses to the officer’s questions became more emotional.          He repeatedly

stated that he had not assaulted anyone and accused the officer of grabbing his

shirt. The officer asked Johnson for his name and his date of birth; Johnson did

not give it but instead responded by stating, “I didn’t do nothing wrong, bro.”

Once again, the officer asked Johnson to cooperate. At that point, Johnson told

the officer that he could “suck [Johnson’s] dick.” He then used a racial pejorative

and called the officer a “fucking pig.”           Johnson continued making similar

statements while instructing the officer to take him to jail.




                                             3
      Before the parties began presenting evidence to the jury, the trial court

held a hearing outside the jury’s presence about the recording’s admissibility.

Johnson objected to the recording. The following exchange occurred:

      [DEFENSE COUNSEL]: [W]e’ll object to the cursing spree as
      irrelevant to this case, and . . . under [Texas Rule of Evidence
      403(b)]. Essentially he had warrants out for him. . . . [H]e gets
      belligerent with the officer . . . .

             ....

             . . . Your Honor, our objection is under [Texas Rule of
      Evidence 403] it’s not relevant to whether he actually committed an
      assault that day or not. Clearly it’s being offered for prejudicial
      effect. He asked for a lawyer, and they continued to tell him he’s
      detained, and he . . . cusses the officers out, which doesn’t mean . . .
      that he did it or didn’t do it. It’s not relevant . . . and it’s prejudicial,
      and we object to it . . . .

             [THE STATE]: We would argue that the jury -- obviously it
      does not paint him in a good light, his treatment of the officers there.
      I don’t think that alone is a reason to not play the video. He says
      several times that he didn’t do anything, which is pretty relevant to
      whether he committed the offense or not. He says himself he didn’t
      do it. Just because he decides to mouth off to the officers isn’t a
      good enough reason that the jury shouldn’t be able to hear that.

             ....

            THE COURT: . . . I’m going to overrule your objection, and
      what I’ve heard is admissible.

      On appeal, Johnson contends that the trial court’s admission of the

recording constitutes reversible error.      He argues that his statements on the

recording were inadmissible because they were inflammatory, because they

were more prejudicial than probative, and because they had no relevance to the

jury’s determination of his guilt.



                                           4
      Assuming, without deciding, that the trial court erred by admitting the

recording, we conclude that the record does not establish harm justifying

reversal.3 See Tex. R. App. P. 44.2(b). The admission of evidence that should

have been excluded under the rules of evidence is generally nonconstitutional

error subject to a harm analysis under rule of appellate procedure 44.2(b). See

id.; Hayes v. State, 85 S.W.3d 809, 816 (Tex. Crim. App. 2002); see also Mosier

v. State, No. 02-16-00159-CR, 2017 WL 2375768, at *12 (Tex. App.–Fort Worth

June 1, 2017, pet. ref’d) (mem. op., not designated for publication).

      Under rule 44.2(b), we disregard the error if it did not affect Johnson’s

substantial rights. Tex. R. App. P. 44.2(b); see Mosley v. State, 983 S.W.2d 249,

259 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).

An error affects a defendant’s substantial rights when it has a substantial and

injurious effect in determining the jury’s verdict. King v. State, 953 S.W.2d 266,

271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776,

66 S. Ct. 1239, 1253 (1946)). Conversely, an error does not affect a substantial

right if we have a “fair assurance that the error did not influence the jury, or had

but a slight effect.” Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App.

2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).              In

making this determination, we review the record as a whole, including any

      3
        When a harm analysis is dispositive, we need not analyze error. See
Wooten v. State, 400 S.W.3d 601, 607 (Tex. Crim. App. 2013) (“Finding our harm
analysis thus dispositive, we need not address whether the trial court did, in fact,
err not to include the instruction.”).


                                         5
testimony or physical evidence admitted for the jury’s consideration, the nature of

the evidence supporting the verdict, and the character of the alleged error and

how it might be considered in connection with other evidence in the case. Motilla

v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We consider whether the

error, either alone or in context, likely moved the jury from a state of

nonpersuasion to a state of persuasion concerning Johnson’s guilt. Wesbrook v.

State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000) (plurality op.), cert. denied,

532 U.S. 944 (2001).

      The admission of the recording was not the trial’s main event. Brittany was

the first and principal witness. She reluctantly provided details about the assault

while testifying that she still had romantic feelings for Johnson and that she

“want[ed] him around.” She testified that Johnson had pushed her, that she had

fallen partly because of the push and partly because she slipped on wet ground,

and that she had later felt pain resulting from the fall. She explained that she had

not called the police after the assault because she “didn’t want [Johnson] to go to

jail.” Brittany conceded that she had asked the State to not prosecute Johnson,

and concerning Johnson’s character, she testified, “He’s a good person. Good

people make mistakes. I mean, I . . . really just need him around being I’m about

to have a child in like nine weeks, and he can’t do that if he’s behind bars.”

      The jury also received testimony from a police officer who stated that when

he met with Brittany after the assault, she was fearful and nervous, and one of

her arms was injured.      The State played the recording during that officer’s


                                          6
testimony and briefly questioned the officer about the recording’s contents. 4 The

State briefly referred to the recording during its guilt-phase closing argument, but

most of the State’s argument concerned other matters, including details of the

assault, Brittany’s credibility, and a plea for law enforcement.

      We cannot conclude that the jury likely disbelieved Brittany’s reluctant

account of assault, as circumstantially supported by the responding officer’s

observations of her later that day, but decided to accept the account at a later

point in the trial simply because of hearing Johnson’s statements in the

recording. See Wesbrook, 29 S.W.3d at 119; see also Kirk v. State, 421 S.W.3d

772, 784 (Tex. App.—Fort Worth 2014, pet. ref’d) (holding that under rule

44.2(b), no harm resulted from the admission of eight photographs because the

photographs “comprise[d] an insignificant portion” of the trial’s evidence and

because the State did not emphasize the photographs).              Thus, we cannot

conclude that the admission of the recording had a substantial and injurious

effect on the jury’s verdict. See Tex. R. App. P. 44.2(b); King, 953 S.W.2d at

271. We conclude that the record does not show the quantum of harm required

for reversal, and we overrule Johnson’s sole point.




      4
       To compare, Brittany’s testimony spans nineteen pages of the reporter’s
record. The officer’s testimony in which he describes his interaction with
Johnson on the recording spans two pages.


                                          7
                                  Conclusion

      Having overruled Johnson’s only point, we affirm the trial court’s judgment.



                                                  /s/ Wade Birdwell
                                                  WADE BIRDWELL
                                                  JUSTICE

PANEL: SUDDERTH, C.J.; KERR and BIRDWELL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 1, 2018




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