COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

DANNY THOMAS MOLINA,

 Appellant,

v.

THE STATE OF TEXAS,

 Appellee.

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No. 08-16-00318-CR

Appeal from the

112th District Court 

of Upton County, Texas 

(TC# 16-03-U1125-DSM) 

O P I N I O N

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

amount of less than one gram. 1In 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 

 

1 See TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(b) (West 2017) and 481.102(3)(D) (West Supp. 2017).
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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)