Bennie Johnson, Jr. v. State

ACCEPTED
06-14-00194-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
4/16/2015 8:54:14 PM
DEBBIE AUTREY
CLERK
No.06-14-00194-CR
IN THE SIXTH COURT OF APPEALS FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
at TEXARKANA, TEXAS 4/17/2015 8:46:00 AM
DEBBIE AUTREY
Clerk
BENNIE JOHNSON, JR.
Appellant
vs.
THE STATE OF TEXAS
Appellee
Appeal from the District Court of Bowie County, Texas
102nd Judicial District
BRIEF IN SUPPORT OF APPELLANT'S COUNSEL'S
MOTION TO WITHDRAW (ANDERS BRIEF)
Derric S. McFarland
816 Pine Street
Post Office Box 1048
Texarkana, Texas 75504-1048
Telephone: (903) 798-3547
Telecopier: (888) 840-0138
Attorney for Appellant
Bennie Johnson, Jr.
INDENTITY OF PARTIES AND COUNSEL
Pursuant to Texas Rule of Appellate Procedure 38.1(a), the following list is
a complete list of all parties to the trial court's judgment and the names and
addresses of all trial and appellate counsel:
(1) Plaintiff, Appellee
State of Texas
(2)Defendant, Appellant
Bennie Johnson, Jr.
(3) Defendant's trial counsel
Mr. John Stroud
515 Main Street
Texarkana, Texas 75501
( 4) Appellant's appellate counsel
Mr. Derric S. McFarland
816 Pine Street
P.O. Box 1048
Texarkana, Texas 75501
(5) State's trial and appellate counsel
Mr. Jerry Rochelle
Bowie County District Attorney's Office
601 Main Street
Texarkana, Texas 75501
1
1
TABLE OF CONTENTS
Identity of Parties and Counsel. ................................................................................. .ii
Table of Contents ....................................................................................................... .iii
Index of Authorities .................................................................................................. .iv
Statement of the Case ................................................................................................ 1
Issues Presented .......................................................................................................... 2
Statement of Facts ....................................................................................................... 2
Summary of the Argument ........................................................................................ 2
Argument ................................................................................................................... 2
ISSUE ONE: A defendant is entitled to effective assistance of counsel at
trial. Was Bennie Johnson, Jr. provided effective assistance
of
counsel? ........................................................................................ 3
ISSUE TWO: An extraneous offense may be excluded if its relevance is
substantially outweighed by the danger of unfair prejudice.
Were extraneous offenses properly admitted by the trial
court? ............................................................................................ 5
Prayer ......................................................................................................................... 7
Certificate of Service ................................................................................................. 8
Appendix
A. Notice informing Bennie Johnson, Jr. of his right to respond to Motion to
Withdraw as Counsel within thirty days .................................................... 9
111
INDEX OF AUTHORITIES
CASES: PAGE
Corley v. State,
987 S.W.2d 615 (Tex.App.-Austin 1999, no pet.) ................... 6
Currie v. State,
516 S.W.2d 684 (Tex. Crim. App. 1974) .................. 3
Hernandez v. State,
726 S.W.2d 53 (Tex. Crim. App. 1986)
................... 4
High v. State,
573 S.W.2d 807 (Tex. Crim. App. 1978)
.................. 3
Jackson v. State,
877 S.W.2d 768 (Tex. Crim. App. 1994)
.................. 4
Johnson v. State,
691 S.W.2d 619 (Tex. Crim. App. 1984) cert. denied, 474 U.S. 865, 88
L. Ed. 2d 152, 106 S.Ct 184 (1985) ..................................................................... .4
Johnson v. State,
932 S.W.2d 296 (Tex.App-Austin 1996, pet. ref'd) ................... 6
Montgomery v. State,
810 S.W.2d 372 (Tex. Crim. App. 1991) .................... 5
Moreno v. State,
858 S.W.2d 453 (Tex.Crim.App. 1993)
................... 6
Moore v. State,
694 S.W.2d 528 (Tex. Crim. App. 1985)
.................. 4
Randle v. State,
760 S.W.2d 30 (Tex. App.-Houston [1 st. Dist.] 1988, no pet.) ............................ 3
IV
Strickland v. Washington,
466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984) ............................... .4
Wilson v. State,
955 S.W.2d 693 (Tex. App.-Waco 1997, order), disp. on merits,
3 S.W.3d 223 (Tex. App.-Waco 1999, pet. ref'd) ........................................... 2
RULES
Texas Rules of Evidence 404(b) ................... 5
Texas Rules of Evidence 403 ................... 6
STATUTES
Texas Penal Code section 22.021 ................... 1
v
STATEMENT OF THE CASE
This is an appeal from a conviction for Aggravated Sexual Assault in
violation of Texas Penal Code section 22.021, a first degree felony, in trial court
number 12F0821-102 and appeal number 06-14-00194-CR. (C.R. 06-14-00194-CR
pg. 78). A jury found Johnson guilty and assessed a punishment of life. (C.R. 06-
14-00 194-CR pg. 78).
ISSUES PRESENTED
ISSUE ONE:
A defendant is entitled to effective assistance of counsel at trial.
Was Johnson provided effective assistance of counsel?
ISSUE TWO:
An extraneous offense may be excluded if its relevance IS
substantially outweighed by the danger of unfair
prejudice.
Were extraneous offenses properly admitted by the trial
court?
STATEMENT OF FACTS
Bennie Johnson, Jr. was arrested for Aggravated Sexual Assault. (C.R. 06-
14-00194-CR pgs. 18 and 19; and R.R. Vol. II pg. 4 et seq.). Johnson entered a
plea of not guilty to the charge and submitted his case to the court. (R.R. Vol. II
pg. 4 and R.R. Vol. VIII pg. 10). After a jury trial, Johnson was convicted on the
charge. (C.R. 06-14-00194-CR pg. 78). Upon the conclusion of the punishment
trial, Johnson was then sentenced to life in the Texas Department of Criminal
1
Justice-Institutional Division. (C.R. 06-14-00194-CR pg. 78).
SUMMARY OF THE ARGUMENT
Appellate counsel can locate no arguable grounds for appeal. Therefore,
pursuant to Anders v. California, counsel reviews two possible points of error.
However, each appears groundless.
Bennie Johnson, Jr. was represented by counsel at the trial. Counsel took an
active part and appears to have provided effective assistance of counsel.
Extraneous offenses were allowed to be introduced to the jury during the
guilt/innocence phase of the trial. It appears that the extraneous offenses were
properly admitted as rebuttal upon Johnson proffering a defensive theory that the
complainant had engaged in consensual sex and subsequently fabricated the charge
of aggravated sexual assault.
ARGUMENT
Appellate counsel can locate no arguable grounds for appeal and, therefore,
files this Anders briefwith a corresponding Motion To Withdraw with this Court.
A copy of this brief in support of Appellant's Counsel's Motion to Withdraw
and the corresponding motion has been forwarded to Bennie Johnson, Jr. Johnson
has also been advised that he has thirty days to file a pro se response or a motion
2
requesting an extension of time in which to file the response pursuant to Wilson v.
State, 955 S.W.2d 693 (Tex. App.-Waco 1997, order), disp. on merits, 3 S.W.3d
223 (Tex. App.-Waco 1999, pet. ref'd). See Appendix "A" to Appellant's
Counsel's Motion to Withdraw.
Counsel on appeal has thoroughly read and reviewed the entire appellate
record in search of any arguable grounds of error to raise which would support
either a reversal of Johnson's conviction or some other relief for Johnson which are
within the trial court's limited grant of appellate right. After due diligence
reviewing the appellate record and researching the potential grounds for appeal,
appellate counsel is unable to fmd any error which he, in good faith, can urge
warranting a reversal of this conviction or in support of any other form of relief for
Johnson. Appellate counsel is aware that he has a duty to advance all arguable
ground of error that would afford Johnson a reversal of his conviction or any other
relief which are within the trial court's limited grant of appellate right. Regardless,
pursuant to High v. State, counsel must demonstrate why there are no arguable
grounds to be advanced. 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); Currie v.
State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Randle v. State, 760 S.W.2d 30,32
(Tex. App.-Houston [1st. Dist.] 1988, no pet.). Therefore, Appellant's Counsel
presents the following issues reviewed:
3
ISSUE ONE: A defendant is entitled to effective assistance of counsel at trial.
Was Bennie Johnson, Jr. provided effective assistance of
counsel?
A claim of ineffective assistance of counsel is examined by the standard
enunciated in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct.
2052 (1984), and adopted by the Texas Court of Criminal Appeals in Hernandez v.
State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). That standard requires the
appellant to show (1) his counsel's representation fell below an objective standard
of reasonableness, and (2) a reasonable probability exists that, but for counsel's
unprofessional errors, a different outcome would have resulted. Jackson v. State,
877 S.W.2d 768, 771 (Tex. Crim. App. 1994).
The burden is on the appellant to prove his ineffectiveness claim by a
preponderance of the evidence. Moore v. State, 694 S.W.2d 528,531 (Tex. Crim.
App. 1985). The court looks to the totality of the representation to determine
whether counsel provided effective assistance. Moore v. State, 694 S.W.2d 528,
531 (Tex. Crim. App. 1985). However, a court strongly presumes counsel's
competence, but appellant can rebut this presumption by showing his attorney's
representation was unreasonable under prevailing professional norms. See Jackson
v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Finally, the appellate
record must support a claim of ineffective assistance. See Johnson v. State, 691
4
S.W.2d 619, 627 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865, 88 L. Ed. 2d
152, 106 S. Ct. 184 (1985).
In the case at bar, appointed trial counsel appeared at the trial. (R.R. vol.
VII, pg. 4). Counsel cross examined the state's witnesses (R.R. vol. VIII pgs. 31,
50, 66, 84, 99, 119, 133, 136, 159 and R.R. vol IX, pgs. 18, 37) and presented
defendant to testify and elicited testimony. (R.R. vol. VIII, pg. 171). Additionally
the trial counsel presented an alternative theory as a defense to the case. (R.R. vol.
VIII, pgs. 15, 171). Bennie Johnson, Jr.'s trial counsel made opening (R.R. vol.
VIII, pgs. 15) and closing statements. (R.R. vol. IX, pgs. 61).
ISSUE TWO: Was it proper for the trial court to admit the extraneous
offenses?
Texas Rules of Evidence 404(b) states that evidence of other crimes or
wrongs by the defendant is not admissible if it is relevant only to prove the
character of the defendant in order to show that he acted in conformity therewith.
The issue of whether extraneous offense evidence is admissible was considered by
the Texas Court of Criminal Appeals in Montgomery v. State of Texas. The court
held that to be admissible, extraneous offense evidence must be relevant apart from
indicating mere character conformity, that is, it must tend to establish some
elemental or evidentiary fact or rebut some defensive theory. Montgomery v. State,
5
810 S.W.2d 372,386-87 (Tex. Crim. App. 1991); Tex R. Evid. 404(b). Even ifan
extraneous offense is relevant apart from character conformity, it may still be
excluded if its relevance is substantially outweighed by the danger of prejudice.
Montgomery, 810 S.W.2d at 387; Johnson v. State, 932 S.W.2d 296, 303
(Tex.App-Austin 1996, pet. ref d); Tex. R. Evid. 403. "Questions of relevance
should be left largely to the trial court, relying on its own observations and
experience, and will not be reversed absent an abuse of discretion." Moreno v.
State, 858 S.W.2d 453, 463 (Tex.Crim.App. 1993); Corley v. State, 987 S.W.2d
615,618 (Tex.App.-Austin 1999, no pet.).
In the case at bar, the State called two witnesses who testified to
similar fact situations with appellant (R.R. vol. IX, pgs. 8, 30). Both occurrences
detailed how the appellant offered to give the witnesses a ride but then made up an
excuse to deviate from the route (R.R. vol. IX, pgs. 8, 25, 30, 39). They each went
on to state that the appellant sexually assaulted them in a dark, remote location
before driving off without them (R.R. vol. IX, pgs. 8,25, 30, 39). The witnesses'
personal lives were also of a similar nature. Each described having a drug
addiction and experiencing the same socioeconomic troubles which led the State to
theorize that appellant targeted certain females that might be less likely to report
their victimization (R.R. vol. VIII, pgs. 182, 184).
6
PRAYER
WHEREFORE, premises considered, appellate counsel respectfully requests
that Appellant's Counsel's Motion to Withdraw as Counsel be granted.
Respectfully submitted,
/s/ Derric S. McFarland
By: ____________________________ _
Derric S. McFarland
Texas Bar No. 24048646
816 Pine Street
P.O. Box 1048
Texarkana, Texas 75504-1048
Telephone: 903-798-3547
Facsimile: 888-840-0138
ATTORNEYS FOR APPELLANT
BENNIE JOHNSON, JR.
CERTIFICATE OF COMPLIANCE
Pursuant to the Tex. R. App. P. 9.4, I hereby certify that this brief
contains 1,336 words (excluding the caption, table of contents, table of
authorities, signature, proof of service, certification and certificate of
compliance). This is a computer-generated document created in Microsoft
Word, using 14 point typeface for all text. In making this certificate of
compliance, I am relying on the word count provided by the software used
to prepare the document.
/s/ Derric S. McFarland
By:
Derric S. McFarland
7
Texas Bar No. 24048646
816 Pine Street
P.O. Box 1048
Texarkana, Texas 75504-1048
Telephone: 903-798-3547
Facsimile: 888-840-0138
ATTORNEYS FOR APPELLANT
BENNIE JOHNSON, JR.
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing Brief in Support of
Appellant's Counsel's Motion to Withdraw (Anders Brief) has this 14 day of April,
2015, been forwarded by the United States Postal Service to the following:
Appellant
Mr. Bennie Johnson, Jr.
SID # 08641019
Stiles Unit
3060 FM 3514
Beaumont, TX 77705
Trial Court Judge
Hon. Bobby Lockhart
710 James Bowie Drive
New Boston, Texas 75570
State's Attorney
Ms. Kelley Crisp
Bowie County District Attorney
601 Main Street
Texarkana, Texas 75501
/s/ Derric S. McFarland
Derric S. McFarland
8
APPENDIX
A.
Notice Informing Bennie Johnson, Jr. of his right to respond to
"Motion to Withdraw as counsel" within thirty days.
9
McFARLAND LAW OFFICE
DERRIC s. MCFARLAND
ATTORNEY AND COUNSELOR AT LAw
8 1 6 PINE STREET TELEPHONE: 903-798-3547
P.O. Box 1048 FACSIMILE: 1 -888-840-0 1 38
TEXARKANA, TEXAS 75504 McF ARLAND.ATTY@GMAIL.COM
April 14,2015
Mr. Bennie Johnson, Jr.
TDCJ-ID# 01970053
Stiles Unit
3060 FM 3514
Beaumont, TX 77705
Re: State of Texas vs. Bennie Johnson, Jr.; Trial Court Cause No.
12F0821-102 - 102nd District Court of Bowie County, Texas;
Appellate Cause No. 06-14-00194-CR
Dear Mr. Johnson:
As you are aware, I was appointed by Judge Bobby Lockhart on or about
October 17,2015, to represent you in the above referenced appeal.
I have thoroughly read and reviewed the Clerk's Record and Reporter's
Record in Appeal One in search of any arguable grounds of error to raise which
would support either a reversal of your conviction or some other relief for you.
After due diligence of the appellate record and researching the potential grounds
for your appeal, I am unable to find any error which I, in good faith, can urge
warranting a reversal of this conviction or in support of any other form of relief for
you. Therefore, pursuant to Anders v. California, 386 U.S. 738 (1967), I filed
Appellant's Counsel's Motion to Withdraw and a Brief in Support of Appellant's
Counsel's Motion to Withdraw (Anders Brief) asking the Sixth District Court of
Appeals to permit me to withdraw from my representation of you. Please find a
copy of this motion and brief enclosed.
Pursuant to Wilson v. State, I must advise you that you have thirty days
from the date the enclosed motion and brief are filed with the Sixth District
Court of Appeals to file a pro se response or a motion requesting an extension
of time in which to file a response with the Court of Appeals. Wilson v. State,
955 S.W.2d 693 (Tex. App.-Waco 1997, order), disp. On merits, 3 S.W.3d 223
(Tex. App.-Waco 1999, pet. ref d). Please also find enclosed the entire reporter's
and clerk's records in order that you may prepare your own brief.
I am sorry that I was unable to locate any arguable points of error to present
to the Sixth District Court of Appeals on your behalf with regard to this appeal. If
I can answer any questions, please contact me.
Sincerely,
/s/ Derric S. McFarland
DSM
Enclosures