In Re David Joel Johnson v. the State of Texas ( 2023 )

Petition for Writ of Mandamus Denied and Memorandum Majority Opinion
and Dissenting Opinion filed September 7, 2023.
In The
Fourteenth Court of Appeals
NO. 14-23-00634-CR
IN RE DAVID JOEL JOHNSON, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
263rd District Court
Harris County, Texas
Trial Court Cause No. 1802642
DISSENTING OPINION
A jury found relator guilty of burglary of a habitation with the intent to
commit the felony of injury to a child. Tex. Penal Code Ann. § 30.02(a)(1). Relator
pleaded true to two previous felony convictions. The trial court assessed
punishment at imprisonment for 27 years and pronounced that sentence in open
court. Relator filed a notice of appeal. On May 18, 2023, the trial court granted
trial counsel’s motion to withdraw and signed an order appointing counsel to
represent appellant on appeal but did not write in the name of that appointed
counsel. I know this because these facts are in the clerk’s record and reporter’s
record in relator’s appeal in case number 14-23-00375-CR, of which I take judicial
notice. I also take judicial notice of relator’s motion to obtain free transcript
records, which was filed in this court on August 24, 2023, stating in part:
The Defendant was convicted and sentenced in the 263rd
District Court of Harris County, Texas on May 18, 2023. After the
Defendant was convicted and sentenced, his trial counsel, Ted R.
Doebbler, gave notice of appeal and immediately withdrew from the
Defendant’s case without filing a motion for new trial. No other
attorney has been appointed to the Defendant’s case to handle his
appeal.
The Defendant received a letter from [the] Deputy Clerk of this
Honorable Court dated Monday, July 17, 2023. In this letter, she is
informing me that the appellant’s brief [is due] in this Court 30 days
from the date above. The Defendant currently has no transcript
records, nor have [sic] the Defendant been appointed council to
handle his appeal.
....
In the instant case, the Defendant’s case is currently on appeal.
He is indigent and has no means of paying for his transcript records.
He has not been appointed counsel to handle his appeal and meet the
deadline in filing an appellant’s brief. For these reasons, the
Defendant should obtain free transcript records.
Finally, I take judicial notice of this court’s electronic docket, which does not
reflect that any appellate counsel for appellant has appeared.
Relator’s petition for a writ of mandamus alleges that he has filed motions,
sent letters, and called the trial court requesting appointment of appellate counsel
for the prosecution of his appeal in case number 14-23-00375-CR. He includes an
unsworn declaration: “I, David Joel Johnson, do hereby swear under penalty of
perjury that the foregoing [is] true and correct.”
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This presents an unusual situation in which (a) relator has sworn under
penalty of perjury both that he has no appellate counsel and has requested the trial
court to appoint counsel and (b) this court’s records reflect that no appellate
counsel has appeared. We could ask for a response based on this petition and
record.
Instead, the majority falls back on the shameful “extra rules” that place an
impossible burden on incarcerated persons, that they must provide either a
file-stamped copy of the motion or other proof that the motion in fact was filed and
is pending before the trial court.1 The majority knows or should know that no
appellate counsel has appeared and that the appellant’s brief is due on September
7, 2023.
I would request a response from both the respondent trial judge and the real
party in interest, the State. Counsel for the State has an ethical duty to do justice;
1
As I wrote in In re Williams:
But it is not enough for the court to merely deny fundamental fairness and
allow notice and an opportunity to cure. The court goes further and once again
invokes the heads-I-win-tails-you-lose caselaw from this court that requires
incarcerated individuals to go beyond offering evidence by means such as
unsworn declarations, requiring them instead to provide to this court file-marked
copies of documents from the trial court. See, e.g., In re Henry, 525 S.W.3d 381,
382 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding) (corrected op., per
curiam). I strongly disagree with that caselaw. See, e.g., In re Pete, 589 S.W.3d
320, 323–24 (Tex. App.—Houston [14th Dist.] 2019, orig. proceeding) (Spain, J.,
concurring); see also MKM Eng’rs, Inc. v. Guzder, No. 14-23-00160-CV, slip op.
at 2 (Tex. App.—Houston [14th Dist.] May 18, 2023, order) (Spain, J., dissenting)
(“This subjective rejection of statements made under penalty of perjury of some
appellate parties is shameful. How do we know who the next Timothy Code or
Michael Morton will be? . . . Beyond the issue of access to photocopiers, it is
possible these individuals may be unable to provide such file-marked copies of
documents from the trial court because none were sent to them by the trial-court
clerk.”).
No. 14-23-00091-CR, 2023 WL 3828805 (Tex. App.—Houston [14th Dist.] June 6, 2023, orig.
proceeding) (Spain, J., dissenting).
3
perhaps the prosecutor will do what the majority will not—assist relator in getting
the counsel appointed to which he is constitutionally entitled so that the companion
appeal isn’t stuck in limbo. I would not do nothing, allowing the appeal to go
nowhere.
I strongly dissent.
/s/ Charles A. Spain
Justice
Panel consists of Justices Jewell, Spain, and Wilson (Spain, J., dissenting).
Publish — Tex. R. App. P. 47.2(b).
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