Michael Dan Allen Johnson v. State ( 2015 )

AFFIRM as MODIFIED, and REVERSE and ACQUIT; Opinion Filed December 29, 2015.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00713-CR
No. 05-14-00714-CR
No. 05-14-00715-CR
MICHAEL DAN ALLEN JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause Nos. 366-81546-2013; 366-81547-2013; & 366-81548-2013
MEMORANDUM OPINION
Before Justices Francis, Evans, and Stoddart
Opinion by Justice Francis
Following a bench trial, Michael Dan Allen Johnson was convicted of aggravated
kidnapping, possession/promotion of child pornography, and aggravated sexual assault of a
child, all related to his conduct with a thirteen-year-old girl he met on the internet. The trial
court assessed concurrent seven-year prison terms for the aggravated kidnapping and
pornography offenses and then stacked a sixteen-year term for the aggravated sexual assault.
In all of the cases, appellant argues the trial court abused its discretion by failing to hold a
hearing on his pro se motion to substitute counsel. In the aggravated kidnapping case, appellant
argues he was convicted of “two counts” of aggravated kidnapping for a single offense in
violation of the Double Jeopardy Clause. We conclude these issues are without merit. The State
has requested us to modify the judgments in these appeals to conform with the proceedings
below. We modify the judgments as requested in Cause Nos. 05-14-00713-CR and 05-14-
00714-CR and affirm the judgments as modified.
In the aggravated sexual assault case, appellant argues the evidence is legally insufficient
to show Texas had jurisdiction over the offense because the acts were committed in the state of
Colorado. The State concedes error in the aggravated sexual assault case. Having reviewed the
record, we agree and sustain appellant’s issue. Accordingly, we reverse the trial court’s
judgment in No. 05-14-00715-CR and render a judgment of acquittal.
Appellant and T.P. met over the internet while playing a game. T.P. told appellant she
was thirteen years old although she was actually eleven at the time. Appellant, who lived in the
state of Washington, was in his mid-30s. Over the next two years, appellant and T.P. exchanged
phone numbers and began texting and calling each other. They talked about “sexual stuff” and
sent each other nude photographs. At some point, T.P. lied to appellant and told him her father
beat her and was going to sell her as a sex slave in Mexico.
So, in May 2013, appellant drove to Princeton, Texas, where T.P. lived, to “rescue” her.
T.P. climbed out of her window, got in appellant’s truck, and the two left for Washington. On
the way, they stayed overnight in a motel in Colorado, where T.P. said they “had sex” one time.
The next morning, appellant learned the police were looking for him in connection with T.P.’s
disappearance. Appellant called the local police, who arrested him at the motel. Appellant gave
a written statement saying he “loved” T.P. and admitted he “made love” to her while in
Colorado.
We begin with appellant’s complaint, raised in all three cases, that the trial court abused
its discretion by failing to hold a hearing on his pro se motion to substitute counsel and by failing
to grant the motion.
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Appellant was indicted on July 9, 2013, and although the record does not show the
precise date when counsel was appointed, it does establish appellant had counsel by September
5. That same month, the trial court granted a motion for a psychiatric evaluation of appellant and
appointed a psychologist. On October 24, a sealed evaluation was tendered to the court.
On November 12, 2013, appellant filed a handwritten “Motion to Substitute Counsel
Pursuant to Article 26.04.” In the motion, appellant asked the trial court to remove court-
appointed counsel because (1) all communications had broken down, (2) and counsel had
“refused to [a]ssist the defendant as required” by the Sixth and Fourteenth Amendments and
article 26.04. Appellant asked the court to hold a hearing and then “appoint other counsel that
will be willing to [assist] the defendant in the charges against him . . . .” The record does not
reflect the motion was ever brought to the trial court’s attention, and no hearing was held on the
motion.
Five months later, on April 3, 2014, appellant appeared at a pretrial hearing and
acknowledged he was electing to waive his right to a jury trial and have the case heard by the
judge. Appellant was sworn in, and the trial judge questioned him to ensure his wavier was
knowing and voluntary. When asked if he understood the case was set for a jury trial the
following Monday, appellant responded, “Yeah. I been going over that with my attorney. He’s
been trying to explain everything to me, because I never been in trouble before.” At no point did
appellant alert the trial judge to his motion to substitute counsel or otherwise express any
dissatisfaction with court-appointed counsel.
A defendant dissatisfied with his attorney has the burden of bringing his complaint to the
trial court’s attention. See Malcolm v. State, 628 S.W.2d 790, 791–92 (Tex. Crim. App. [Panel
Op.] 1982); Llamas v. State, 270 S.W.3d 274, 277 (Tex. App.—Amarillo 2008, no pet.) (“We
can find no support in the record for the proposition that the motion to dismiss appointed counsel
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was ever brought to the trial court’s attention . . . . As such, the same has not been preserved for
appeal.”).
Although appellant’s motion requested a hearing, there is nothing in the record to indicate
appellant ever brought the motion to the trial court’s attention. Further, when appellant appeared
before the trial court, he never mentioned the motion or expressed any dissatisfaction with court-
appointed counsel. Because appellant failed to alert the trial court to the motion, we cannot
conclude the trial court abused its discretion by failing to hear or grant the motion. See Bowen v.
State, No. 02-11-00491-CR, 2013 WL 3874760, at *3 (Tex. App.—Fort Worth July 24, 3013, no
pet.) (although appellant’s pro se motion to substitute counsel prayed for a hearing, nothing in
record indicated appellant presented motion to trial court or attempted to set it for hearing). We
overrule the issue.
We next address appellant’s double jeopardy complaint raised in the aggravated
kidnapping case. Appellant argues he was convicted of two counts of aggravated kidnapping for
a single offense. He asks that we “remove the guilty finding” as to one of the counts and remand
the case for a new punishment hearing since his sentence stemmed from an “illegal guilty finding
as to two counts of the same offense.” The State responds the indictment mislabeled
“paragraphs” as “counts” and alleges only a single offense. We agree with the State.
The indictment alleged appellant, did then and there
COUNT I
intentionally and knowingly abduct [T.P.] with the intent to violate or abuse her
sexually;
COUNT II
intentionally and knowingly abduct [T.P.] with the intent to commit a felony[.]
At arraignment, the trial court stated appellant was “charged with the first degree felony
offense of aggravated kidnapping,” the third-degree felony offense of possession of child
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pornography, and the first-degree felony of aggravated sexual assault of a child. After hearing
the evidence, the trial court found appellant “guilty of each indictment before the Court.” At
sentencing, the trial court assessed appellant’s punishment at seven years on “the aggravated
kidnapping,” seven years on the pornography charge, and sixteen years on the aggravated sexual
assault of a child. The court then ordered the “two seven-year sentences” to run concurrently.
The sole judgment for aggravated kidnapping states the cause number and “Count I & II”
at the top. The body of the judgment provides aggravated kidnapping as the “Offense for which
Defendant Convicted” and the punishment as “SEVEN (7) YEARS INSTITUTIONAL
DIVISION, TDCJ.”
The two basic elements of aggravated kidnapping are (1) intentionally and knowingly
abducting another person, and (2) the commission of an aggravating factor. Laster v. State, 275
S.W.3d 512, 521 (Tex. Crim. App. 2009). A kidnapping is aggravated when the abduction is
committed with the specific intent to accomplish one of six purposes, or the person uses or
exhibits a deadly weapon during the offense. TEX. PENAL CODE ANN. § 20.04(a)(1–6), (b) (West
2011) Laster, 275 S.W.3d at 521. One such purpose is to facilitate the commission of a felony.
TEX. PENAL CODE ANN. § 20.04(a)(3). The State may prosecute a person for each victim
kidnapped, not for the number of aggravating factors that may be present. Gonzales v. State,
270 S.W.3d 282, 288 (Tex. App.—Amarillo 2008, pet. ref’d) (op. on reh’g). The State may,
however, plead alternate aggravating factors as they are merely different manner or means of
committing the single offense of aggravated kidnapping. See id. (“In this case, the State alleged
one victim and has sought only a single conviction for the offense of aggravated kidnapping,
regardless of the number of aggravating factors alleged in Count I.”)
As a general rule, a “count” charges an offense and a “paragraph” is that portion of a
count which alleges the method of committing the offense. See Martinez v. State, 225 S.W.3d
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550, 554 (Tex. Crim. App. 2007); Fowler v. State, 240 S.W.3d 277, 280 (Tex. App.—Austin
2007, pet. ref’d). However, the substance of the allegation determines its character as a “count”
or a “paragraph,” not the terminology used. Owens v. State, 96 S.W.3d 668, 673 (Tex. App.—
Austin 2003, no pet.).
It is clear the substance of the indictment alleges alternate aggravating factors (intent to
commit a felony and intent to commit sexual abuse), rather than two separate offenses. Further,
the record shows the trial judge treated the indictment as charging only a single offense as shown
by his statements at arraignment, conviction, and sentencing. At no time did the judge reference
two separate kidnapping charges; rather, he referred to a single offense. Because we conclude
appellant was convicted of a single offense of aggravated kidnapping, his double jeopardy
complaint is without merit.
In the aggravated sexual assault of a child case, appellant argues the evidence is legally
insufficient to show territorial jurisdiction over the offense because the act occurred in Colorado.
Although the State prosecuted this case to conviction, it now concedes error.
Texas has territorial jurisdiction over an offense if “either the conduct or a result that is
an element of the offense occurs inside this state.” TEX. PENAL CODE ANN. § 1.04(a); Rodriguez
v. State, 146 S.W.3d 674, 675 (Tex. Crim. App. 2004).
Appellant was charged with and convicted of aggravated sexual assault of a child for
“intentionally and knowingly caus[ing] the female sexual organ of [T.P.], a child younger than
fourteen (14) years of age . . . to contact the sexual organ of the defendant[.]” The evidence
showed appellant sexually assaulted T.P. in a Colorado motel. The State concedes that none of
the elements of the offense occurred in Texas and thus the evidence failed to establish territorial
jurisdiction. After reviewing the record, we agree with the State and sustain appellant’s issue.
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Finally, the State asks that we modify the judgments in the aggravated kidnapping and
pornography cases. With respect to both judgments, the State asks that we add clarifying
language to specify that the sentences run concurrently with each other. Additionally, the State
asks that we modify the aggravated kidnapping judgment to accurately reflect a single count.
This Court has the authority to correct the judgments of the Court below to make the record
“speak the truth” when we have the necessary data and information to do so. Asberry v. State,
813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d).
We reverse the trial court’s judgment in Cause No. 05-14-00715-CR (aggravated sexual
assault of a child) and render a judgment of acquittal. We modify the trial court’s judgments as
requested in Cause Nos. 05-14-00713-CR (aggravated kidnapping) and 05-14-00714-CR
(possession/promotion of child pornography) and affirm as modified.
/Molly Francis/
MOLLY FRANCIS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
140713F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MICHAEL DAN ALLEN JOHNSON, On Appeal from the 366th Judicial District
Appellant Court, Collin County, Texas
Trial Court Cause No. 366-81546-2013.
No. 05-14-00713-CR V. Opinion delivered by Justice Francis;
Justices Evans and Stoddart participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
To delete the reference to "Count 1 & II" at the top of the judgment and replace it
with "Count Single."
To add the following highlighted clarifying language: “This sentence shall run
concurrently with the possession/promotion of child pornography conviction.”
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 29th day of December, 2015.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MICHAEL DAN ALLEN JOHNSON, On Appeal from the 366th Judicial District
Appellant Court, Collin County, Texas
Trial Court Cause No. 366-81547-2013.
No. 05-14-00714-CR V. Opinion delivered by Justice Francis;
Justices Evans and Stoddart participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
To add the following highlighted clarifying language: "This sentence shall run
concurrently with the aggravated kidnapping conviction."
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 29th day of December, 2015.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MICHAEL DAN ALLEN JOHNSON, On Appeal from the 366th Judicial District
Appellant Court, Collin County, Texas
Trial Court Cause No. 366-81548-2013.
No. 05-14-00715-CR V. Opinion delivered by Justice Francis;
Justices Evans and Stoddart participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED
and the appellant is hereby ACQUITTED.
Judgment entered this 29th day of December, 2015.
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