Ivan Johnson v. State ( 2007 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-06-00726-CR
Ivan Johnson, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF LLANO COUNTY, 424TH JUDICIAL DISTRICT
NO. CR5778, HONORABLE DAN H. MILLS, JUDGE PRESIDING
OPINION
A jury found appellant Ivan Johnson guilty of indecency with a child by contact and
assessed punishment at five years’ imprisonment. See Tex. Penal Code Ann. § 21.11 (West 2003).
On the jury’s recommendation, the trial court suspended imposition of sentence and placed appellant
on community supervision. In his only point of error, appellant contends that the court erred
by modifying the conditions of supervision after hearing victim statements. We will affirm
the judgment.
The record contains a formal bill of exception. See Tex. R. App. P. 33.2. We quote
it in full:
Defendant IVAN JOHNSON, was convicted in Count 2 of Indecency with a
Child on September 27, 2006. The victim in this count was 10-year-old [B.L.]
Defendant was acquitted that same day in Count 1 of Indecency with a Child alleged
to have been committed against 9-year-old [S.D.]
The jury returned its verdict on punishment on September 28, 2006, after the
presentation of witnesses and argument of counsel. After the Court imposed a
sentence of probation in accordance with the jury’s verdict, [K.L.] and [M.B.] were
allowed to make a statement in open court pursuant to Article 42.03 of the Code of
Criminal Procedure.[1]
[K.L.], the mother of [B.L.] read her own written statement in open court in
the presence of the Court, the Defendant, his attorneys, and the prosecutor and
members of the audience. This written statement was directed to the Defendant and
described how the offense had affected her and her daughter, [B.L.], and stated or
strongly inferred that the Defendant had sexually abused his own granddaughter as
well as others. Upon finishing her own statement, [K.L.] then read a written
statement prepared by her daughter, [B.L.]. The statement, like her mother’s,
described the effects this offense had on her and the negative feelings she now had
for the Defendant.
[M.B.] then read her written statement in the presence of the Court, the
Defendant, his attorneys, and the prosecutor and members of the audience. [M.B.] is
the mother of [S.D.], the alleged 9-year-old victim in Count 1. [M.B.’s] statement
was similar to [K.L.’s] statement expressing the effects the Defendant’s actions had
on her and her daughter and the negative feelings [M.B.] had for the Defendant.
Upon finishing her own statement, [M.B.] stated that [S.D.] also had written a
statement but that she and [S.D.] were too traumatized to read it. The Court then
volunteered to read [S.D.’s] statement aloud and did so at that time. This statement,
like the others, described in detail how the Defendant’s actions violated her trust in
him, the effects his actions caused her and her mother and her feelings for the
Defendant as a result of his actions.[2]
Immediately after the Court read [S.D.’s] statement in open court he
proceeded to impose additional conditions of probation including the requirement
1
Tex. Code Crim. Proc. Ann. art. 42.03, § 1(b) (West 2006).
2
In light of appellant’s acquittal on count one, one might question whether S.D. was a victim
within the meaning of article 42.03. Appellant does not raise this issue, and we express no opinion
on the matter.
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that the Defendant serve 180 days in the county jail.[ 3 ] In accordance with Article
42.03, the reading of the four statements was not transcribed by the court reporter.[4]
The bill of exception contains most of the facts pertinent to appellant’s point of error. It should be
added that after receiving the punishment verdict and dismissing the jury, the court announced: “[I]t
is the sentence of this Court that you be placed on probation for a term of five years and a fine of
$5,000 that will be probated also. You will be placed upon the standard conditions of probation and
the ones this [sic] apply to sex offenders.”5 It was at this point that the victim statements were made.
Under article 42.03, the trial court must permit a victim or a victim’s close relative
or guardian to “appear in person to present to the court and to the defendant a statement of
the person’s views about the offense, the defendant, and the effect of the offense on the victim.”
Tex. Code Crim. Proc. Ann. art. 42.03, § 1(b) (West 2006). “The court reporter may not transcribe
the statement.” Id. There is no requirement that the victim statement be sworn, and the statute does
not provide for cross-examination. “The statement must be made : (1) after punishment has been
assessed and the court has determined whether or not to grant community supervision in the case;
(2) after the court has announced the terms and conditions of the sentence; and (3) after sentence is
pronounced.” Id.
3
Although the bill of exception refers to additional conditions, the record otherwise reflects
that the only arguable additional condition imposed by the court was the 180-day jail term. This is
the only condition appellant challenges in this appeal.
4
The victim statements were apparently written in advance of trial. The written versions
were made a part of the appellate record by order of the district court on appellant’s motion.
5
We do not know if the “standard conditions of probation” referred to by the court are the
basic conditions set out in the community supervision statute or the conditions that are routinely
imposed in Llano County. See Tex. Code Crim. Proc. Ann. art. 42.12, § 11 (West 2006). If the
latter, there is no evidence as to what those conditions are.
3
Article 42.03 allows a victim statement only after sentencing in order to alleviate any
risk that the statement might affect the partiality of the fact finder at the punishment phase. Garcia
v. State, 16 S.W.3d 401, 408 (Tex. App.—El Paso 2000, pet. ref’d). A victim statement pursuant
to article 42.03 “can best be thought of as an opportunity for the victim to vent his or her feelings
in a public forum about the offense and the defendant.” 43 George E. Dix & Robert O. Dawson,
Texas Practice: Criminal Practice and Procedure § 38.84 (2d ed. 2001). The statement is not
evidence and is intended to have no effect on decisions made in the criminal process. Id.
Appellant contends that the trial court violated article 42.03 by modifying the
conditions of supervision after hearing the victim statements, adding the requirement that he serve
180 days in jail. In overruling appellant’s objection on this ground, the trial court stated, “[T]his
Court sat through the whole trial and heard all of the evidence that was in the trial, which clearly
included what I read and what basically was stated. I mean, the Court could logically deduce most
of what was read in that victim impact statement. That did not influence this Court in determine
[sic] to sentence him to 180 days in the county jail because I had not imposed what conditions of
probation I was going to impose.”
There is an ambiguity in article 42.03 with regard to its application in community
supervision cases. There is no sentence when community supervision is granted; instead imposition
of sentence is suspended. Tex. Code Crim. Proc. Ann. art. 42.12, §§ 3, 4 (West 2006). “In other words,
community supervision is an arrangement in lieu of the sentence, not as part of the sentence.” Speth
v. State, 6 S.W.3d 530, 532 (Tex. Crim. App. 1999). Although article 42.03, section 1(b) clearly
provides that victim statements must be made after the decision to grant community supervision has
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been made, it is unclear whether victim statements must be made after the terms and conditions of
community supervision have been announced and after sentence has been suspended.
We need not resolve this ambiguity in this case. Jail time as a condition of community
supervision is authorized by statute and is within the trial court’s discretionary authority to impose or
not. Tex. Code Crim. Proc. Ann. art. 42.12, § 12(c) (West 2006); Fielder v. State, 834 S.W.2d 509, 511
(Tex. App.—Fort Worth 1992, pet. ref’d). Section 12(c) permits the trial court to impose confinement
in jail as a condition of supervision when placing the defendant on supervision or “at any time during
the supervision period.” Tex. Code Crim. Proc. Ann. art. 42.12, § 12(c). Thus, even if the conditions
of supervision must generally be determined and announced before any victim statement is made,
section 12(c) of the community supervision statute creates an exception to this rule. The court below
was and remains authorized to impose jail time as a condition of appellant’s community supervision
at any time during the five-year supervision period. Under the circumstances, if the court’s
determination to impose the jail time condition was made after the victim statements were made, it was
at most harmless error.
The point of error is overruled and the judgment of conviction is affirmed.
__________________________________________
G. Alan Waldrop, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: July 19, 2007
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