In The 

Court of Appeals 

Seventh District of Texas at Amarillo

________________________

No. 07-17-00145-CR 

________________________

DAVID ANTHONY MARTIN, APPELLANT 

 

V. 

 

STATE OF TEXAS, APPELLEE 

 

 

On Appeal from the 207th District Court 

Comal County, Texas 

Trial Court No. CR 2016-402 (Counts I, II, III, V, VI, VII & VIII) 

Honorable Bruce Boyer, Presiding 

 

December 6, 2018 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. 

 

By a single indictment, Appellant, David Anthony Martin, was charged with one 

count of aggravated kidnapping, three counts of aggravated assault with an affirmative 

finding on use of a deadly weapon, one count of possession of a controlled substance, 

to-wit: methamphetamine, in an amount of one gram or more but less than four grams, 

and three counts of tampering with physical evidence. 
2

The trial court entered a judgment of acquittal as to one of the aggravated assault 

offenses and a jury convicted Appellant of the seven remaining offenses. The range of 

punishment applicable on each offense was raised pursuant to the habitual offender 

provisions of the Texas Penal Code.1 Appellant elected to have the court assess 

punishment and sentences were imposed as depicted below.

Count I Aggravated Kidnapping

(Sarah Johnson)

TEX. PENAL CODE ANN.

§ 20.04 (West 2011)

60 years

Count II Aggravated Assault 

with a Deadly Weapon

(Sarah Johnson)

TEX. PENAL CODE ANN.

§ 22.02(a)(2) (West 

2011)

50 years

Count III Aggravated Assault 

with a Deadly Weapon

(Sarah Johnson)

TEX. PENAL CODE ANN.

§ 22.02(a)(2) (West 

2011)

50 years

Count IV Aggravated Assault 

with a Deadly Weapon

(Kirk Collins)

TEX. PENAL CODE ANN.

§ 22.02(a)(2) (West 

2011)

Acquittal

Count V Possession of a 

Controlled Substance 

Penalty Group 1

>1 gram <4 grams

TEX. HEALTH & SAFETY 

CODE ANN. § 481.115(c) 

(West 2017)

25 years

Count VI Tampering with 

Physical Evidence

(black knife)

TEX. PENAL CODE ANN. 

§ 37.09(d)(1)

(West 2016)

25 years

Count VII Tampering with 

Physical Evidence

(black box containing 

methamphetamine)

TEX. PENAL CODE ANN. 

§ 37.09(d)(1) (West 

2016)

25 years

Count VIII Tampering with 

Physical Evidence

(red box containing 

baggies)

TEX. PENAL CODE ANN. 

§ 37.09(d)(1) (West 

2016)

25 years

 

1 See TEX. PENAL CODE ANN. § 12.42 (West Supp. 2018). An offense “punished as” a higher offense 

raises the level of punishment, not the degree of the offense. Oliva v. State, 548 S.W.3d 518, 526-27 (Tex. 

Crim. App. 2018).
3

The trial court entered seven separate judgments wherein Appellant’s sentences 

were ordered to run concurrently. Appellant filed a timely notice of appeal.

2

 By a single 

issue, Appellant contends the trial court erred by allowing evidence of his gang affiliation 

to be admitted before the jury. We reform six of the seven judgments to correct clerical 

errors and affirm the judgments as reformed.

BACKGROUND

Appellant ended a dating relationship with Sarah Johnson3 sometime prior to 

November 2, 2015. On that date, Appellant called Johnson and asked her to pick him up 

at a location in New Braunfels, Texas. He also asked her to bring him his television, 

which he had left at her apartment.

When Johnson arrived at the arranged pick-up location, Appellant was carrying a 

bundle of personal possessions which he proceeded to load into her vehicle. At that 

point, Appellant instructed Johnson to take him to her apartment so that he could retrieve 

his television. When Johnson objected, Appellant pulled out a knife and held it to her 

side. He then instructed her again to take him to her apartment. Instead of driving to her 

apartment, Johnson drove to the nearest public place, a Walmart parking lot. There, an 

argument ensued, and Appellant threatened to stab her.

 

2 Originally appealed to the Third Court of Appeals, this case was transferred to this court by the 

Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 

(West 2013). Should a conflict exist between precedent of the Third Court of Appeals and this court on any 

relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R.

APP. P. 41.3 

3 The victim originally requested the State to use a pseudonym, and therefore, the indictment was 

returned using the pseudonym “Sarah Johnson.” Although the victim was identified and her given name 

used throughout trial, we will use the pseudonym contained in the indictment.
4

Wanting to de-escalate the situation, Johnson managed to call a friend, Kirk 

Collins, who was at her apartment, and advised him that she and Appellant were heading 

to the apartment to pick up the television. While driving to her apartment, Johnson told 

Appellant she would go in and bring the television out to him. When they arrived at the 

apartment, both parties exited the vehicle. Johnson testified that she was frightened by 

Appellant’s yelling at her as they approached the apartment. 

Once they entered the apartment, Appellant began brandishing two knives. While 

Johnson was in the kitchen, he grabbed her and cupped his hand over her mouth while 

holding one of the knives. This maneuver chipped Johnson’s teeth. During this assault, 

another woman, Bailey Martinez, was in the living room of the apartment and Collins was 

in the bathroom calling the police.

At this point, Appellant left the apartment and returned to Johnson’s vehicle to 

retrieve his personal possessions. As Appellant removed his possessions from the 

vehicle, Johnson approached and began to talk to him in an attempt to detain him until 

the police could arrive. When the police did arrive, Appellant pushed Johnson in front of 

one officer, Todd Henricksen, and fled on foot. Officer Henricksen gave chase, finally 

catching up to Appellant after he tripped and fell. As they approached, officers witnessed 

Appellant attempting to secrete items under a pile of leaves. A K-9 unit and another

officer, Jason Tucker, later retrieved from the leaf pile a knife, a black box containing 

methamphetamine, and a red box containing baggies.

Initially, Johnson did not want Appellant prosecuted for any of the activities that 

night. She expressed fear of retaliation and even requested that the police use a 

pseudonym in their police reports. Later, after being pressured by Appellant’s mother 
5

and a friend of Appellant, Johnson went to the police station and filled out a nonprosecution affidavit. Despite these efforts, Appellant was indicted for the eight offenses 

outlined above.

At trial, Johnson testified concerning the events of November 2nd, as did the 

investigating officers. On appeal, Appellant contends the trial court erred in allowing 

Johnson and Officer Williams to testify concerning Appellant’s affiliation with a known 

criminal street gang, the Aryan Brotherhood. Appellant contends the State set up two 

sham grounds for the admission of that testimony: (1) to refute a claim of “self-defense,”

and (2) to rebut evidence that Johnson made attempts to “drop” the charges against him 

because she was in fear of retaliation. On the other hand, the State contends the grounds 

for admission of that testimony were legitimate, that the evidence was properly admitted 

in accordance with the Texas Rules of Evidence, and that, even if the testimony were

inadmissible, any error in admitting that evidence was harmless.

APPLICABLE LAW AND ANALYSIS

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

discretion. See Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); 

Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990) (en banc). The test 

for abuse of discretion is a question of whether the trial court acted without reference to 

any guiding rules and principles. See Montgomery, 810 S.W.2d at 380. We will uphold 

the trial court’s ruling “so long as the result is not reached in an arbitrary or capricious 

manner.” See id. Furthermore, we will sustain the trial court’s decision if that decision is 

correct on any theory of law applicable to the case. Romero v. State, 800 S.W.2d 539, 

543 (Tex. Crim. App. 1990) (en banc).
6

If an appellate court determines that the trial court committed error in the admission 

or exclusion of evidence, it must then determine whether Appellant was harmed by that 

error. Generally, the erroneous admission of gang affiliation evidence is nonconstitutional error subject to harmless error analysis under Rule 44.2(b) of the Texas 

Rules of Appellate Procedure. See TEX. R. APP. P. 44.2(b); Villareal v. State, No. 05-13-

00629-CR, 2014 Tex. App. LEXIS 7296, at 21-22 (Tex. App.—Dallas July 7, 2014, no 

pet.) (mem. op., not designated for publication) (error, if any, in the admission of evidence 

of gang affiliation reviewed on basis of non-constitutional error); Johnson v. State, No. 

03-09-00062-CR, 2010 Tex. App. LEXIS 3884, at *8 (Tex. App.—Austin May 19, 2010, 

pet. ref’d) (mem. op., not designated for publication) (same). Non-constitutional error 

does not require reversal unless it affects the appellant’s substantial rights. An appellant’s 

substantial rights are not affected by the erroneous admission of evidence if, after 

examining the record as a whole, the appellate court has a fair assurance that the error 

did not influence the jury’s verdict or had but a slight effect. Solomon v. State, 49 S.W.3d 

356, 365 (Tex. Crim. App. 2001); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 

1997) (disregarding the erroneous admission of evidence where evidence did not have a 

substantial or injurious influence on the jury’s decision). Furthermore, erroneouslyadmitted testimony may constitute harmless error when it is cumulative of other evidence 

introduced in the case. See Franks v. State, 90 S.W.3d 771, 805-06 (Tex. App.—Fort 

Worth 2002, no pet.) (admission of evidence was harmless where same evidence was 

introduced through several other witnesses). See also Valencia v. State, 484 S.W.3d 

238, 244 (Tex. App.—Amarillo 2016, pet. ref'd) (holding that purported error involving the 

admission of evidence of gang affiliation was harmless because similar evidence was 

properly admitted elsewhere at trial).
7

Several nonexclusive factors should be considered when conducting a harmless 

error analysis under Rule 44.2(b), including (1) the nature or the error, (2) whether or to 

what extent the erroneously-admitted evidence was emphasized by the State, (3) the 

probable collateral consequences of the error, and (4) how much weight the jurors are 

likely to place on the erroneously-admitted evidence in the course of their deliberations. 

Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App. 2011).

Here, the State solicited evidence of Appellant’s gang affiliation with the Aryan 

Brotherhood, a known criminal street gang, for the purported purpose of refuting a claim 

that Johnson was the first aggressor and to rebut any negative inferences that might arise 

from her attempts to see that the charges against Appellant were not prosecuted. 

Testimony established that the knife recovered by the police was embellished with Nazi 

symbols, including a swastika and Gestapo iconography. Testimony also established that

Johnson knew Appellant had tattoos on his body depicting swastikas, lightning bolts, and 

other Nazi symbols and she knew that he associated with other members of the Aryan 

Brotherhood. Overall, we can accept the State’s contention that this testimony was 

offered to explain Johnson’s reluctance in wanting to see Appellant prosecuted. It was 

never implied that gang affiliation testimony was being offered as character-conformity 

evidence and it was clear that the offenses being prosecuted were unrelated to the 

activities of any street gang. As such, the trial court did not err in admitting that testimony. 

Furthermore, even assuming the trial court erred by admitting the complained-of 

evidence, we conclude Appellant was not harmed. See TEX. R. APP. P. 44.2(b). As to 

the merits of the offense, properly-admitted testimony plainly established the basic 

elements of the offenses for which Appellant was convicted. In light of the overwhelming 
8

evidence of guilt, including the fact that the weapon used to facilitate the offenses was 

embellished with Nazi symbolism, we fail to see how evidence of Appellant’s gang 

affiliation had a substantial or injurious influence on the jury’s decision to convict. As 

such, any error in the admission of that evidence was harmless. See TEX. R. APP. P. 

44.2(b). Accordingly, Appellant’s issue is overruled.

REFORMATION OF JUDGMENT

In our review of the record, it has come to our attention that six of the seven

judgments include a clerical error. The judgment pertaining to Count III incorrectly 

identifies the “Statute of Offense” as section 20.02(a)(2) of the Texas Penal Code, when 

it should reflect section 22.02(a)(2). Furthermore, the judgments pertaining to Counts II, 

III, V, VI, VII, and VIII reflect the assessment of “Court Costs” in the amount of $528.00, 

when they should reflect zero. Because Appellant was charged with eight offenses in a 

single criminal action, the trial court is allowed to only assess one set of court costs. See 

TEX. CODE CRIM. PROC. ANN. art. 102.073(a) (West 2018) (providing that “[i]n a single 

criminal action in which a defendant is convicted of two or more offenses or of multiple 

counts of the same offense, the court may assess each court cost or fee only once against 

the defendant”).

This court has the power to modify the judgment of the court below to make the 

record speak the truth when we have the necessary information to do so. TEX. R. APP. P.

43.2(b). Ramirez v. State, 336 S.W.3d 846, 852 (Tex. App.—Amarillo 2011, pet. ref’d) 

(citing Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993)). Appellate courts

have the power to reform whatever the trial court could have corrected by a judgment 

nunc pro tunc where the evidence necessary to correct the judgment appears in the 
9

record. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d). The

power to reform a judgment is “not dependent upon the request of any party, nor does it 

turn on the question of whether a party has or has not objected in the trial court.” Id. at 

529-30. 

As such, the judgments of the court are reformed to reflect the correct degree of 

offense and court costs assessed, as set forth above. Furthermore, the trial court is 

ordered to prepare and file a Judgment Nunc Pro Tunc reflecting each reformation set 

out above and the trial court clerk is ordered to provide copies of the corrected judgments

to the Institutional Division of the Texas Department of Criminal Justice.

CONCLUSION

As reformed, the trial court’s judgments are affirmed.

Patrick A. Pirtle

 Justice

Do not publish.