IN THE

TENTH COURT OF APPEALS

No. 10-16-00238-CR

JOHNNIE LEE THOMPSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court No. 15-00318-CRF-272

MEMORANDUM OPINION

The jury convicted Johnnie Thompson of the offense of assault family violence. 

The trial court found the enhancement paragraph to be true and assessed punishment at 

thirteen years confinement. We affirm. 

Motion for Forfeiture by Wrongdoing

In the first issue on appeal, Appellant argues that the trial court erred in granting 

the State’s motion for forfeiture by wrongdoing. Prior to voir dire proceedings, the State 
Thompson v. State Page 2

asked the trial court to issue a writ of attachment for Sol-Lisha Henderson, the 

complaining witness. The State informed the trial court that Henderson was subpoenaed 

to be there, but that she had not appeared. Henderson made numerous statements that 

she would not appear at trial. The State further informed the trial court that they were 

filing a motion for forfeiture by wrongdoing. The trial court granted the writ of 

attachment and indicated that there would be a hearing on the motion for forfeiture by 

wrongdoing after jury selection.

The Texas Code of Criminal Procedure provides that:

(a) A party to a criminal case who wrongfully procures the unavailability 

of a witness or prospective witness:

(1) may not benefit from the wrongdoing by depriving the trier of 

fact of relevant evidence and testimony; and

(2) forfeits the party's right to object to the admissibility of evidence 

or statements based on the unavailability of the witness as provided by this 

article through forfeiture by wrongdoing.

(b) Evidence and statements related to a party that has engaged or 

acquiesced in wrongdoing that was intended to, and did, procure the 

unavailability of a witness or prospective witness are admissible and may 

be used by the offering party to make a showing of forfeiture by 

wrongdoing under this article, subject to Subsection (c).

(c) In determining the admissibility of the evidence or statements described 

by Subsection (b), the court shall determine, out of the presence of the jury, 

whether forfeiture by wrongdoing occurred by a preponderance of the 

evidence. If practicable, the court shall make the determination under this 

subsection before trial using the procedures under Article 28.01 of this code 

and Rule 104, Texas Rules of Evidence.
Thompson v. State Page 3

(d) The party offering the evidence or statements described by Subsection 

(b) is not required to show that:

(1) the actor's sole intent was to wrongfully cause the witness's or 

prospective witness's unavailability;

(2) the actions of the actor constituted a criminal offense; or

(3) any statements offered are reliable.

TEX. CODE CRIM. PROC. ANN. art. 38.49 (West Supp. 2016). 

The Texarkana Court of Appeals addressed Article 38.49 in Shepherd v. State and 

stated that we review the trial court’s decision to admit or exclude evidence for abuse of 

discretion. Shepherd v. State, 489 S.W.3d 559, 572 (Tex.App. – Texarkana 2016, pet. ref’d). 

A trial court abuses its discretion only when its decision was so clearly wrong as to lie 

outside that zone within which reasonable persons might disagree. Id.

In a criminal prosecution, a defendant has a Sixth Amendment right to be 

confronted with the witnesses against him. Giles v. California, 554 U.S. 353, 357-58, 128 

S.Ct. 2678, 171L.Ed.2d 488 (2008); Gonzalez v. State, 195 S.W.3d 114, 116 

(Tex.Crim.App.2006); Shepherd v. State, 489 S.W.3d at 573. Even if a hearsay statement 

offered against the defendant may be otherwise admissible under the Rules of Evidence, 

the Confrontation Clause may be implicated if the defendant has not had the opportunity 

to confront the out-of-court declarant. Gonzalez v. State, 195 S.W.3d at 116; Shepherd v. 

State, 489 S.W.3d at 573. However, declarations made by a declarant whose unavailability 
Thompson v. State Page 4

the defendant procured may be admitted as an exception even though the defendant did 

not have an opportunity to confront the declarant. Shepherd v. State, 489 S.W.3d at 573. 

Under forfeiture by wrongdoing, the defendant is barred from asserting his right 

of confrontation when he has wrongfully procured the unavailability of the witness. Id. 

Under Giles, this exception applies only "when the defendant engaged in conduct 

designed to prevent the witness from testifying." Giles, 554 U.S. at 359, 128 S.Ct. 2678; 

Shepherd v. State, 489 S.W.3d at 573. Further, the United States Supreme Court requires 

that there must be some showing by the proponent of the statement that the defendant 

intended to prevent the witness from testifying. Giles, 554 U.S. at 361-62, 128 S.Ct. 2678; 

Shepherd v. State, 489 S.W.3d at 573. However, forfeiture by wrongdoing applies even 

when the defendant has multiple reasons for harming the witness, as long as one of the 

reasons is to prevent her from testifying. Shepherd v. State, 489 S.W.3d at 573. Forfeiture 

by wrongdoing may apply "even though the act with which the accused is charged is the 

same as the one by which he allegedly rendered the witness unavailable." Gonzalez v. 

State, 195 S.W.3d at 125; Shepherd v. State, 489 S.W.3d at 573.

The trial court held a hearing outside the presence of the jury on the State’s motion 

for forfeiture by wrongdoing. At the hearing, Angela Thomas, an investigator for the 

District Attorney’s office, testified that when served with the subpoena to appear at trial, 

Henderson stated that she did not want to testify. Henderson said that she had “done 

some legal research, and she realized if she came in to testify, all of her statements would 
Thompson v. State Page 5

be brought in.” Thomas stated that the Brazos County jail records indicate Appellant 

called Henderson from the jail 79 times between June 1, 2015 and the start of trial on June 

20, 2015. Appellant called Henderson seven times between June 19 and the start of trial 

on June 20. Appellant also used another inmate’s ID to call Henderson. Thomas testified 

that after the trial court issued the writ of attachment, she tried to locate Henderson at 

her residence, at her mother’s residence, at Appellant’s family residence, and at 

Henderson’s former place of employment. Henderson’s mother told Thomas that 

Henderson was not in Bryan and that they would not find her.

At the hearing, the State presented evidence of numerous incidents where the 

police responded to domestic disturbance calls concerning Henderson and Appellant. 

On January 2, 2015, the police responded to the assault call that resulted in the present 

conviction. Henderson called 9-1-1 and reported that Appellant choked her and tried to 

kill her. The SWAT team was called to take Appellant into custody. After Appellant’s 

arrest, Henderson signed a non-prosecution affidavit.

On March 24, 2015, Henderson met with the prosecutor and victim assistance 

coordinator and said that she wanted a protective order. Henderson stated that now she 

wanted to press charges, that there were two new incidences of violence between her and 

Appellant, and that she was afraid she would end up dead. Henderson stated that 

Appellant told her, “If I go back to jail, you’re going to die.” The State filed a motion to 

increase Appellant’s bond and impose bond conditions, but Henderson did not show up 
Thompson v. State Page 6

to testify at the hearing. Henderson told the assistant district attorney that Appellant 

texted her from the courtroom and told her not to come.

On June 20, 2016, the trial court issued the writ of attachment for Henderson 

because she failed to appear for trial. That same day, Appellant called Henderson from 

jail using the phone provided by the jail for inmates. Appellant, however, used another 

inmate’s ID to make the call. Appellant and Henderson had the following conversation:

Appellant: That’s why I was saying I was gonna call you off another phone. 

I was gonna let you know, you better watch out staying at home. You know 

what I’m saying, you know cause you being at home, they gonna try and 

get you at the house. I’m telling you, they want you bad. ...

Henderson: They want me bad?

Appellant: Baby I’m just letting you know. If your truck is parked outside, 

they going to wait outside for you. In the morning or whatever they gonna 

get you. Cause I’m telling you the DA and them wants your ass, they was 

talking ... that’s all they kept saying was we need to bring Sol-isha in.

Henderson: Really?!

Appellant: I’m telling you, you think this is a God d-mn game. I couldn’t 

really; I couldn’t say it on my phone because my phone, that phone is under 

my name. ... But I’m trying to tell you, you got your car parked out there 

you might as well, they gonna be sitting out there waiting for you, I’m 

telling you. They gon be waiting on you, to leave or something. If they 

knock on that door you better not answer that door.

Henderson: But baby, you don’t know where I’m at.

...

Appellant: Yeah I’m telling you! They put out a warrant for your arrest. I 

had to go into the God d-mn, the judge’s office before I even went in the 

courtroom. I was sitting in that God d-mn room and they issued, they 

granted a warrant for you. And they said go apprehend your ass right now. 
Thompson v. State Page 7

My trials gon last four days, you just have to wait four days and you won’t 

have to worry about it. If you can run for four days, until Thursday, they 

gon have to probably dismiss my case or something. But I couldn’t tell you 

that, that’s why I had to try to play it off, play it off. You feel me?

Henderson: Are you f-cking serious? That’s how bad they want me?

...

Appellant: They gon get you, without you there aint no case. I’m telling 

you they gon get you.

Henderson: No they not. *laughing*

Appellant: I’m telling you, they catch you at that house, and if you have 

anybody go get clothes for you or whatever, make sure that ain’t nobody 

following them or nothing. I’m trying to tell you what’s up.

...

Appellant: They catch your ass coming up out that house you remember, 

they gon book your ass, cause you got a warrant for your arrest. Pending, 

and if you go to work, you better hope you work out of town or something. 

Or you better put somebody on game and let them know that you aint at 

work at that time, cause they know you go back to work Wednesday. 

...

Appellant: You feel me? You just got to be cautious how you come and go. 

You gotta watch your surroundings when you go to work and everything.

...

Appellant: Cause they started my trial today. They need you in there that’s 

why my court date is set back at 2 cause they gon try to press issue on 

getting you by tonight. And then by morning try to catch your ass in the 

morning time coming up out of that house. If you anywhere, at your 

mamas house, anything ... my judge... my lawyer say, do you know where 

she be taking the kids to? And I just thought, what you gon try to do take 

the kids, and them make her give in or some sh-t?

...

Henderson: That’s what they trying to do.

Appellant: I’m telling you ... I’m telling you, that’s what they trying to do, 

they trying to get the kids, and see if they take the kids, but they don’t have 

no warrant for the kids, so they can’t make you, they can’t do that. You feel 
Thompson v. State Page 8

me? They got a warrant for your arrest, so they can’t take the kids but they 

might try. ...

Appellant argues that in Shepherd the Texarkana Court of Appeals did not discuss 

the causal requirement contained in Article 38.49. Appellant contends that Article 38.49 

requires “evidence that through Appellant’s particular care and effort, the wrongful act 

or acts caused the absence of complainant as a witness.” Appellant argues that the 

evidence does not show that Henderson’s failure to appear was caused by his conduct. 

Article 38.49 states that a party to a criminal case who “wrongfully procures” the 

unavailability of a witness forfeits the right to object to the admissibility of evidence based 

on the unavailability of the witness. Citing Giles, the Texarkana court stated that 38.49 

applies when the defendant engaged in conduct designed to prevent the witness from 

testifying and that there must be a showing that the defendant intended to prevent the 

witness from testifying. Shepherd v. State, 489 S.W.3d at 573. We agree with the analysis 

of the Texarkana court in Shepherd.

The record shows that Appellant assaulted Henderson on numerous occasions. 

Appellant threatened to kill Henderson if he went back to jail. Appellant texted 

Henderson from a cell phone and told her not to appear at the bond hearing, and she did 

not appear at that hearing. Appellant called Henderson the day before the trial and told 

her to leave town until his trial was over. The trial court did not abuse its discretion in 

finding by a preponderance of the evidence that Appellant wrongfully procured the 
Thompson v. State Page 9

unavailability of Henderson. The record supports a finding that Appellant engaged in 

conduct intended to prevent Henderson from testifying. We overrule the first issue.

Sentencing

In the second issue, Appellant argues that the sentence should be reformed to 

reflect an eight year sentence rather than the thirteen year sentence stated in the 

judgment. When pronouncing the sentence, the trial court stated:

All right, sir. Your sentence is thirteen years in the penitentiary, eight years 

for the crime and five years for lying to everybody. Total of thirteen. You 

are hereby sentenced to thirteen years in the Texas Department of Criminal 

Justice Institutional Division.

Appellant contends that the trial court was unambiguous in pronouncing eight years for 

the charged offense. Appellant asks this Court to reform the judgment to reflect a 

sentence of eight years.

The trial court was authorized to consider Appellant’s character, the circumstances 

of the offense, and the evidence of extraneous offenses in assessing punishment. TEX.

CODE CRIM. PROC ANN. art. 37.07 Sec. 3 (a) (1) (West Supp. 2016). The trial court clearly 

stated that the sentence was thirteen years while noting he considered Appellant’s 

truthfulness in assessing the sentence. We overrule the second issue.

Conclusion

We affirm the trial court’s judgment.
Thompson v. State Page 10

AL SCOGGINS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed July 26, 2017

Do not publish

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