Donnie Christopher Johnson v. the State of Texas

AFFIRMED and Opinion Filed May 16, 2023
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00964-CR
DONNIE CHRISTOPHER JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-1671543
MEMORANDUM OPINION
Before Justices Reichek, Goldstein, and Kennedy1
Opinion by Justice Goldstein
Appellant Donnie Christopher Johnson appeals the trial court’s judgment
adjudicating guilt for assault–family violence. See TEX. PENAL CODE ANN.
§ 22.01(b)(2)(A). In his sole issue, appellant contends that the trial court erred by
admitting hearsay evidence. We affirm in this memorandum opinion. See TEX. R.
APP. P. 47.2(b).
1
The Honorable Justice David J. Schenck was originally a member of this panel. The Honorable Justice
Kennedy succeeded Justice Schenck when his term expired on December 31, 2022. Justice Kennedy has
reviewed the briefs and the record.
BACKGROUND
On November 2, 2016, appellant was indicted on charges of assault–family
violence against his niece. The indictment contained an enhancement paragraph
alleging a prior felony conviction for felony assault. Pursuant to a plea agreement
with the State, appellant pleaded guilty to the charged offense. The trial court entered
an order of deferred adjudication, placing appellant under community supervision
for seven years. The terms of appellant’s community supervision included the
following:
(a) Commit no offense against the laws of this or any other State or the
United States, and do not possess a firearm during the term of
Supervision;
(b) Avoid injurious and vicious habits, and do not use marijuana,
narcotics, dangerous drugs, inhalants or prescription medication
without first obtaining a prescription for said substances from a
licensed physician;
(c) Avoid persons or places of disreputable or harmful character and do
not associate with individuals who commit offenses against the laws
of this State or the United States;
(d) Obey all rules and regulations of the Supervision Department, and
report in the manner and time as directed by the Judge or
Supervision Officer, to-wit: Monthly, Twice Monthly or Weekly[;]
....
(n) Submit a non-diluted random urine sample and/or medical
test/breathalyzer test at the request of the Supervision Officer to
determine the use of illicit drugs or alcohol, paying the total cost of
such urinalysis of $200.00 payable at $10.00 monthly to the
Community Supervision and Corrections Department;
....
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(p) Do not possess, consume or purchase any alcoholic beverages, or
illegal controlled substances during the term of Supervision;
....
(r) Within 30 days from referral, participate in an anger management
program through a court-approved resource, making an observable
deliberate and diligent effort to comply with all directives provided
by the program until released successfully by the agency or the
Court. Defendant to pay all costs of counselling/treatment;
....
(t) Within 30 days from referral, participate in intensive outpatient
substance counseling through a court approved program and
continue making observable deliberate and diligent effort to comply
with all directives and instructions provided by said program or its
staff, until released successfully by the agency or the Court.
Defendant to pay all costs of counseling/treatment[.]
On November 1, 2017, the State filed a motion to revoke probation or proceed
with an adjudication of guilt, which the State amended four times through the course
of the proceedings below. In its final amended motion, the State alleged that
appellant violated the above conditions of his community supervision as follows:
(A[1]) by possessing a firearm during the term of supervision;
(A[2]) by committing aggravated assault with a deadly weapon on or
about March 20, 2021;
(A[3]) by committing aggravated assault with a deadly weapon on or
about March 19, 2021;
(B[1]) by using cocaine as evidenced by a positive urine screen
collected on or about May 31, 2019;
(B[2]) by using cocaine as evidenced by a positive urine screen
collected on December 3, 2018;
(B[3]) by using opiates as evidenced by a positive urine screen collected
on or about October 27, 2017;
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(B[4]) by using PCP as evidenced by a positive urine screen collected
on or about September 25, 2017;
(C) by failing to avoid persons and places of disreputable or harmful
character;
(D) by failing to report to the Supervision Officer as directed for the
months of February 2020–March 2021;
(N) by failing to submit a non-diluted urine sample and/or medical
test/breathalyzer test as requested by the Supervision Officer on or
about January 31, 2020;
(P) by possessing, consuming, or purchasing alcoholic beverages or
illegal controlled substances during the term of the Supervision;
(R) by failing to participate in an anger management program through
a court-approved resource, making an observable, deliberate, and
diligent effort to comply with all directives provided by the program;
(T) by failing to participate in intensive outpatient (“IOP”) substance
counseling through a court-approved program; and
(2) by failing to report to the 194th Judicial District Court on January
31, 2020 at 1:30 p.m. for a supervision review with the judge; to wit:
“the defendant left the court review when requested to submit to a
urinalysis test[.]”
Appellant entered a plea of not true to the allegations.
On October 29, 2021, the trial court held a hearing on the State’s amended
motion. The first witness to testify was Theresa Howard, a Dallas County Probation
Officer assigned to appellant’s case. Howard testified that, according to appellant’s
case file, appellant failed to complete both the IOP counseling and anger
management course. Howard also stated that, during the term of appellant’s
supervision, he tested positive for cocaine, opiates, and PCP on the dates alleged in
the State’s amended motion. Howard testified that on January 31, 2020, appellant
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“exited the court review and he walked on the UA,” (i.e., the urinalysis test) when
requested. Howard said that the last time appellant reported to a probation officer
was February 2020.
The State’s second witness was Mikkel Weeks, another Dallas County
Probation Officer. Weeks testified that he was the officer who told appellant that he
had to take a urinalysis test on January 31, 2020. Weeks stated that appellant told
him he did not need to use the restroom at that time. Weeks said that he told appellant
to sit down in the gallery outside the courtroom. About halfway through the court
review, he went to retrieve appellant, but appellant was not there. Weeks testified
that he notified his supervisor that appellant did not appear for the urinalysis and did
not appear before the judge.
The State next called Juan Mendoza, the field officer assigned to appellant’s
case. Mendoza testified that appellant was required to report to him on a monthly
basis. Mendoza stated that appellant reported to him in October 2019 and November
2019. Mendoza stated that appellant did not report as required from February 2020
until the time of the hearing.
The State’s next witness was Officer Vittor Grantham of the Dallas Police
Department. Officer Grantham stated that he was assigned to the 911 call center at
the City of Dallas. Officer Grantham testified that he received a 911 call from a
person who identified herself as Cleo King. He testified that King’s demeanor was
“upset, kind of frustrated.” The State then offered an audio recording of the 911 call
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into evidence. Appellant’s counsel objected as to hearsay, and the State responded
that the call was excepted from the hearsay rule as an excited utterance. The trial
court admitted the recording into evidence. In the recording, King stated: “my
boyfriend just kicked in my door, beat me, pulled a gun on me, and left.” When
asked if she needed an ambulance, King stated that she was bleeding and she did not
know if she needed stitches or not. When asked who assaulted her, King identified
appellant by his full name.
The State finally called Officer Otilio Valdez Sanchez of the Dallas Police
Department. Officer Sanchez testified that he and another police officer were
dispatched to King’s address at around 1:00 a.m. on March 20, 2021. Officer
Sanchez stated that upon arriving, he noticed the door to King’s residence was
damaged. He said that when King came to the door, he noticed she had a gash above
her eyebrow. Photographs of the damaged door and King’s injury were admitted in
evidence over no objection. After Officer Sanchez’s testimony, the State rested.
Appellant testified in his own defense. Appellant acknowledged that he had
to comply with certain terms of community supervision. Regarding the January 31,
2020 court review, appellant testified that he arrived at the courthouse with his
grandchildren. He said that he left his grandchildren with someone while he went to
the courtroom. He said that he asked someone at the courtroom if he could have his
grandchildren stationed somewhere and was told no. Appellant testified that he left
because there was no one to watch his grandchildren. Appellant testified that during
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a later call with his probation officer, he was informed that a warrant had been issued
for his arrest. He said that he tried turning himself in at the sheriff’s office three
weeks later, but they would not take him. When asked about the March 20 incident,
appellant said he saw King that night but denied assaulting her. Appellant also
denied owning or possessing a firearm. When asked about his IOP counseling,
appellant stated that he could not complete it because he was told he had to finish
his anger management course first. Appellant conceded that he had done drugs
during the supervision period and requested that the Court reinstate his probation so
he could continue with the IOP course.
After the close of evidence, the trial court announced its ruling on the record.
Specifically, the trial court found that appellant had violated certain conditions of
his community supervision and entered judgment adjudicating him guilty. This
appeal followed.
DISCUSSION
In his sole issue, appellant contends that the trial court erred in admitting the
audio recording of King’s 911 call into evidence over his hearsay objection.
Appellant notes that the audio recording is the only evidence directly connecting him
with the March 20, 2021 incident. He argues that the tape itself shows that King’s
statements were not an excited utterance because her demeanor was calm and there
was no indication of how much time elapsed between the incident and the 911 call.
The State responds that the evidence was sufficient for the trial court to conclude
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King’s statements were an excited utterance. Alternatively, the State argues that
even if the trial court erred in admitting the 911 call, the error was harmless.
We review a trial court’s evidentiary rulings for abuse of discretion. Beham v.
State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018). A trial court abuses its
discretion only when its decision was so clearly wrong as to lie outside the zone of
reasonable agreement. Id.; Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App.
1992). Additionally, the erroneous admission of evidence generally constitutes a
non-constitutional error and is reviewed under Texas Rule of Appellate Procedure
44.2(b). Walters v. State, 247 S.W.3d 204, 219 (Tex. Crim. App. 2007). Under Rule
44.2(b), we disregard any non-constitutional “error, defect, irregularity, or variance
that does not affect [the defendant’s] substantial rights.” TEX. R. APP. P. 44.2(b).
We need not decide whether the trial court erred in admitting the 911 call over
appellant’s hearsay objection because any such error was harmless under Rule
44.2(b). At a revocation hearing, the State must prove the defendant violated at least
one of the terms and conditions of community supervision by a preponderance of
the evidence. Bryant v. State, 391 S.W.3d 86, 93 (Tex. Crim. App. 2012); Rickels v.
State, 202 S.W.3d 759, 763–64 (Tex. Crim. App. 2006). One sufficient ground will
support the trial court’s order revoking community supervision. Smith v. State, 286
S.W.3d 333, 342 (Tex. Crim. App. 2009). To prevail on appeal, an appellant must
successfully challenge all findings that support the revocation order. Guerrero v.
State, 554 S.W.3d 268, 274 (Tex. App.—Houston [14th Dist.] 2018, no pet.). When
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the trial court finds multiple violations, we will affirm a revocation order if the State
proved any one of them by a preponderance of the evidence. See Leach v. State, 170
S.W.3d 669, 672 (Tex. App.—Fort Worth 2005, pet. ref’d); see also Smith, 286
S.W.3d at 342.
Here, appellant does not challenge every possible ground supporting the trial
court’s judgment. The trial court’s judgment reflects the trial court’s finding that the
following allegations were true: (A)(1) that appellant possessed a firearm (A)(2) that
appellant committed aggravated assault; (D) that appellant failed to report to his
probation officer from February 2020 to March 2021; (N) that appellant failed to
submit a urine sample on January 31, 2020; (R) that appellant filed to participate in
an anger management program; (T) that appellant failed to participate in an IOP
counseling program; and (2) that appellant left the January 31, 2020 court review
after being asked to submit a urine sample. Appellant’s sole issue on appeal—that
the trial court erred in admitting hearsay evidence—relates only to allegations (A)(1)
and (A)(2). Even if we were to conclude that the trial court erred in admitting that
evidence, the trial court’s judgment would still be supported by its findings as to the
remaining alleged violations. See Guerrero, 554 S.W.3d at 274; Leach, 170 S.W.3d
at 672.
Appellant argues that he was harmed because if the State failed to prove the
allegations under paragraphs (A)(1) and (A)(2), the remaining “technical violations”
would have likely resulted in a lesser sentence. We see nothing in the record to
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support appellant’s argument. First, the trial court did not (and could not) sentence
appellant for violating the terms of his community supervision. Rather, appellant’s
punishment was assessed for the assault–family violence that occurred in 2016. See
TEX. CODE CRIM. PROC. ANN. art. 42A.755(a)(1) (providing that upon revocation of
community supervision, the trial court may “proceed to dispose of the case as if there
had been no community supervision”). As a term of appellant’s plea bargain, he was
admonished that if he violates the terms of his community supervision, the trial court
may proceed to adjudicate his guilt, at which point “the full range of punishment is
open to the Court.” The trial court heard the evidence, including punishment
mitigation evidence from appellant, and assessed the maximum sentence without
stating the basis of its sentencing decision. In the absence of a clear showing to the
contrary, we presume the trial court acted properly and considered the evidence
presented and the full range of punishment. See Brumit v. State, 206 S.W.3d 639,
645 (Tex. Crim. App. 2006).
We conclude that any error in admitting the 911 call was harmless and
overrule appellant’s sole issue.
On our own review, we note that the judgment adjudicating guilt contains a
typographical error. In the portion of the judgment listing the trial court’s findings,
it states: “While on deferred adjudication community supervision, Defendant
violated the conditions of community supervision, as set out in the State’s
AMENDED Motion to Adjudicate Guilt, as follows: A1, A2, D, N, R, I, & 2.” The
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State’s amended motion did not include paragraph (I) as a condition that had been
violated. At the October 29, 2021 hearing, the trial court orally pronounced its
finding of true to the above paragraphs, which included paragraph (T) rather than
paragraph (I). Additionally, the other violations are listed in alphabetical order,
which further indicates a scrivener’s error in the judgment that referenced (I) as
opposed to (T).
This Court “has the power to correct and reform the judgment of the court
below to make the record speak the truth when it has the necessary data and
information to do so.” Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas
1991, pet. ref’d); accord Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App.
1993). Neither party raised this issue, but we have a duty to modify the judgment to
make the record speak the truth, “and such duty is not dependent upon a request by
either party.” See Asberry, 813 S.W.2d at 531. On our own motion, we modify the
judgment adjudicating guilt to remove paragraph (I) from the list of violations and
replace it with paragraph (T).
As modified, we affirm the trial court’s judgment.
/Bonnie Lee Goldstein//
210964f.u05 BONNIE LEE GOLDSTEIN
Do Not Publish JUSTICE
Tex. R. App. P. 47.2(b)
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DONNIE CHRISTOPHER On Appeal from the 194th Judicial
JOHNSON, Appellant District Court, Dallas County, Texas
Trial Court Cause No. F-1671543.
No. 05-21-00964-CR V. Opinion delivered by Justice
Goldstein. Justices Reichek and
THE STATE OF TEXAS, Appellee Kennedy participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
In the Judgment Adjudicating Guilt, after the words “as set out in the
State’s AMENDED motion to Adjudicate Guilt, as follows[,]” we
REMOVE the letter “I” from the list of referenced paragraphs and
replace it with the letter “T.”
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 16th day of May, 2023.
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