COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS CASE NO CR. DEUNDRA JOHNSON, Defendant-Appellant. STATE OF TEXAS, Plaintiff-Appellee.

Transcription

1 COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS CASE NO CR DEUNDRA JOHNSON, Defendant-Appellant v. STATE OF TEXAS, Plaintiff-Appellee. APPEAL FROM THE 194 DISTRICT COURT OF DALLAS COUNTY, TEXAS BRIEF OF DEFENDANT-APPELLANT PURSUANT TO ANDERS V. CALIFORNIA, 386 U.S. 738 (1967) ORAL ARGUMENT F. CLINTON BRODEN NOT REQUESTED Tex. Bar No Broden & Mickelsen 2600 State Street Dallas, Texas (214) (214) (facsimile) Attorney for Defendant-Appellant Deundra Johnson

2 IDENTITY OF PARTIES AND COUNSEL Plaintiff-Appellee: Trial Counsel: Appellate Counsel: Defendant-Appellant: Trial Counsel: Appellate Counsel: State of Texas Marshall McCallum Dallas County District Attorney s Office 133 Nor Riverfront Boulevard Dallas, Texas Dallas County District Attorney s Office 133 Nor Industrial Boulevard Dallas, Texas Deundra Johnson Scottie Allen 4144 N Central Expy # 650 Dallas, TX F. Clinton Broden Broden & Mickelsen 2600 State Street Dallas, Texas i

3 TABLE OF CONTENTS Page TABLE OF CONTENTS...ii TABLE OF AUTHORITIES...iii STATEMENT OF THE CASE...iv ISSUES PRESENTED...v STATEMENT OF FACTS...1 SUMMARY OF THE ARGUMENT...2 ARGUMENT...3 I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN REVOKING MR. JOHNSON S DEFERRED ADJUDICATION PROBATION AND ADJUDICATING HIS GUILT...3 II. THE PUNISHMENT ASSESSED WAS VALID...5 III. THE DEADLY WEAPON FINDING IN THE JUDGMENT ADJUDICATING GUILT WAS PROPER...6 CONCLUSION...9 CERTIFICATE OF SERVICE...10 ii

4 TABLE OF AUTHORITIES CASES Page Anders v. California, 386 U.S. 738 (1967)...9 Coleman v. State, 2009 WL (Tex. App. Dallas July 9, 2009)...3 Evans v. State, 61 S.W.3d 688 (Tex. App. Fort Wor 2001)...3 Hurd v. State, 483 S.W.2d 824 (Tex. Crim. App. 1972)...5 Lewis v. State, 195 S.W.3d 205(Tex. App. San Antonio 2006)...3 Rickels v. State, 202 S.W.3d 759 (Tex. Crim. App.2006)...3 st Sampson v. State, 983 S.W.2d 842 (Tex. App. Hous. [1 ] 1998)...5 Sampson. Johnson v. State, 2002 WL (Tex. App. Dallas Aug. 5, 2002)...8 Sharkey v. State, 994 S.W.2d 417 (Tex. App. San Antonio 1999)...3 Watts v. State, 644 S.W.2d 461(Tex. Crim. App. 1983)...3 STATUTES Tex Code Crim. P. Art , 5(b)...3 Tex. Penal Code 22.02(b)...5 iii

5 STATEMENT OF THE CASE Deundra Johnson was charged by an indictment returned on August 4, wi aggravated assault using a deadly weapon. See C.R. at 2-3. On August 26, 2008, Mr. Johnson entered a plea agreement and was sentenced to two years deferred adjudication probation. Id. at Among e conditions of probation were at Mr. Johnson not commit any criminal offenses while on probation and at he report to his supervision officer as directed. Id. at On December 8, 2008, a Motion to Revoke Probation or Proceed wi Adjudication of Guilt was filed alleging at Mr. Johnson violated his conditions of Probation by committing e offense of Capital Murder and by failing to report as directed to his probation officer. Id. at A revocation hearing was held on July 8, 2010 and July 12, The trial judge found bo allegations to be true. See RR at IV:61. Following a punishment hearing, e judge sentenced Mr. Johnson to 20 years incarceration. See CR at A timely Notice of Appeal was filed on July 22, 2010 and e Trial Court s Certification of Defendant s Right to Appeal was filed on August 2, Id. at References to e Clerk s Record ( CR ) refer to e page number. References to e Reporter s Record ( RR ) refer to e volume number:page number. iv

6 ISSUES PRESENTED I. Wheer e trial court abused its discretion in revoking Mr. Johnson s deferred adjudication probation and adjudicating his guilt. II. Wheer e punishment at was assessed was valid. III. Wheer e deadly weapon finding in e judgment adjudicating guilt was proper. v

7 STATEMENT OF FACTS In October 2008, Mr. Johnson was placed in e Intensive Intervention Program and was required to meet wi a probation officer once a week. See RR at A probation officer testified at e revocation hearing at, after being placed in e Intensive Intervention Program, Mr. Johnson reported one time but did not report on November 18, Id. at 47. The probation officer testified at, in failing to report, Mr. Johnson violated e conditions of his probation. Id. at

8 SUMMARY OF THE ARGUMENT The evidence was sufficient for e trial judge to find at Mr. Johnson violated his conditions of probation by failing to report to his probation officer on November 18, 2010 and, erefore, it did not abuse its discretion in revoking Mr. Johnson s deferred adjudication probation and adjudicating his guilt. Upon adjudicating Mr. Johnson s guilt for aggravated assault and after a sentencing hearing, e trial court set Mr. Johnson s sentence at twenty years incarceration. Aggravated assault is a second degree felony under e Texas Penal Code. Therefore, while twenty years incarceration was e maximum term of imprisonment allowed for a second degree felony, it was a permissible statutory punishment. The courts have held at a deadly weapon finding is not necessary when placing a defendant on probation. The courts have likewise held at it is only when revoking probation and adjudicating guilt at a trial court should enter any applicable deadly weapon finding. 2

9 ARGUMENT I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN REVOKING MR. JOHNSON S DEFERRED ADJUDICATION PROBATION AND ADJUDICATING HIS GUILT The allegation at Mr. Johnson committed e offense of Capital Murder while on probation was hotly contested. Nevereless, e Court of Criminal Appeals has held at, if any ground for revocation of community supervision is sustainable, such a ground is sufficient in and of itself to sustain e revocation. See, e.g., Watts v. State, 644 S.W.2d 461, 463 (Tex. Crim. App. 1983). See also, Lewis v. State, 195 S.W.3d 205, 209 (Tex. App. San Antonio 2006). The trial court's decision to revoke a defendant's deferred adjudication probation is reviewed under an abuse of discretion standard. See Tex Code Crim. P. Art , 5(b); Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App.2006). Robbie Merritt, a Dallas County Probation Officer, testified at e revocation hearing held in is matter. See RR at IV:45. In October 2008, Mr. Johnson was placed in e Intensive Intervention Program in e 194 District Court and was 2 required to meet wi a probation officer once a week. Id. at According to 2 The case was transferred from e 265 District Court to e 194 District Court, but no proper transfer order is contained in e record. Nevereless, e failure to properly transfer e case from one district court to e oer was not objected to by Mr. Johnson s counsel and, erefore, cannot be a ground for error on direct appeal. See, e.g., Evans v. State, 61 S.W.3d 688, (Tex. App. Fort Wor 2001); Sharkey v. State, 994 S.W.2d 417, 419 (Tex. App. San Antonio 1999); Coleman v. State, 2009 WL , *1 (Tex. App. Dallas July 9, 2009) [not 3

10 Mr. Merritt, Mr. Johnson reported one time but did not report on November 18, Id. at 47. Mr. Merritt testified at Mr. Johnson had been ordered to jail for one day for walking out of a drug test and he was to report to his supervision officer on November 18 and en, by November 20, he was to have written a paper on why he did not want to go to prison. Id. at 52. When Mr. Johnson did not report as directed on November 18, a warranted was issued on November 25. Id. at 53. On cross examination, Mr. Merritt acknowledged at Mr. Johnson left a message for his supervising officer on November 13, 2010 stating he went to e hospital suffering from sickle cell. Id., at 50. This was not verified because, according to Mr. Merritt, Mr. Johnson showed up in jail, ree days later, to serve his one day sentence. Id. It was suggested in closing arguments at e court could not reasonably conclude at Mr. Johnson s November 13 hospitalization did not have someing to do wi his not reporting on November 18 and at ere was no showing at Mr. Johnson had e ability to report on e 18. Id. at 60. Nevereless, no evidence was introduced by Mr. Johnson at e revocation hearing establishing an inability to report as directed. Mr. Johnson did not offer any evidence indicating at he was hospitalized on designated for publication]. Moreover, since ere is no evidence in e record to indicate at Mr. Johnson was prejudiced by e transfer, it cannot be argued at Mr. Johnson s counsel was ineffective for failing to object. 4

11 November 18 or oerwise was unable to report as directed. In Hurd v. State, 483 S.W.2d 824 (Tex. Crim. App. 1972), e trial court was presented wi conflicting evidence as to wheer a defendant s ree mon hospitalization contributed to his failure to report once he was released from e hospital. The Court of Criminal Appeals held at, under ese circumstances, e trial court did not abuse its discretion in revoking e defendant s probation. Id. The evidence contained in e record is at Mr. Johnson was released from any hospitalization prior to November 18 and ere is no evidence at he was unable to report to e probation officer as directed on e 18. Consequently, it cannot be argued at e trial court abused its discretion in revoking Mr. Johnson s deferred adjudication probation and adjudicating his guilt. II. THE PUNISHMENT ASSESSED WAS VALID As noted above, Mr. Johnson was originally placed on deferred adjudication probation for aggravated assault. Aggravated assault is, of course, a felony of e second degree. See Tex. Penal Code 22.02(b). The punishment range upon conviction of a second-degree felony is imprisonment for not less an two, nor more an twenty years and, in addition, a fine of up to $10,000 may be assessed. Id. at As also noted above, upon revocation of Mr. Johnson s deferred adjudication 5

12 probation, e trial court assessed a punishment of twenty years imprisonment. See C.R. at 31. The court s written judgment is consistent wi its oral pronouncement of sentence. Id. at 41; RR at IV:90. Therefore, it would appear at e punishment assessed against Mr. Johnson was in accordance wi e applicable law. III. THE DEADLY WEAPON FINDING IN THE JUDGMENT ADJUDICATING GUILT WAS PROPER The Judicial Confession signed by Mr. Johnson at e time he was placed on deferred adjudication probation admitted at he used a deadly weapon in committing e aggravated assault wi which he as charged. See CR at 13. Nevereless, e Order placing Mr. Johnson on deferred adjudication probation stated N/A under e section Findings on Deadly Weapon. Id. at 14. Still, when revoking Mr. Johnson s deferred adjudication probation and adjudicating guilt, e trial court entered a deadly weapon finding. Id. at 31. As held by e First Court of Appeals in Sampson v. State, 983 S.W.2d 842 st (Tex. App. Hous. [1 ] 1998) is is proper: The trial court's order of deferred adjudication and its order adjudicating appellant's guilt contained e following section: Affirmative Findings: (Circle appropriate selection-n/a = not available or not applicable) 6

13 DEADLY WEAPON: Yes No N/A On e order of deferred adjudication, e trial court circled N/A. On e order adjudicating guilt, e trial court circled Yes.... The purpose of a trial court's making an affirmative finding of a deadly weapon is to aid e Department of Criminal Justice in calculating a prisoner's parole-eligibility date. When a trial court's judgment reflects an affirmative finding at a defendant used a deadly weapon during e commission of a felony, e defendant's parole-eligibility date is extended. TEX. GOV'T CODE ANN (d) (Vernon 1998). Thus, to properly calculate a prisoner's parole-eligibility date, e Department of Criminal Justice must know wheer e trial court has made such an affirmative finding. To provide is information to e Department of Criminal Justice, article 42.12, section 3g(a)(2) of e Texas Code of Criminal Procedure requires at when a trial court makes an affirmative finding of a deadly weapon, it must enter e finding in its judgment. TEX.CRIM. P.CODE ANN. art , 3g(a)(2) (Vernon Supp.1998); Polk v. State, 693 S.W.2d 391, 400 n. 1 (Tex.Crim.App.1985) (interpreting purpose of predecessor section 3f(a)(2)); see Ex parte Jones, 957 S.W.2d 849 (Tex.Crim.App.1997) (applying section 3g(a)(2) in deferred adjudication context). An affirmative finding of a deadly weapon is not applicable to an order of deferred adjudication because parole eligibility only applies to persons who are imprisoned. See TEX. GOV'T CODE ANN (d). When a defendant's adjudication of guilt is deferred, e defendant is not imprisoned; instead, e defendant is placed on community supervision. See TEX.CRIM. P.CODE ANN. art , 5(a) (Vernon Supp.1998). If a trial court determines at a defendant has violated e terms of his deferred adjudication and assesses imprisonment as punishment, e trial court is required to enter any affirmative finding of a deadly weapon in its order adjudicating guilt. TEX.CRIM. P.CODE ANN. art , 3g(a)(2). It is at is point at e affirmative finding of a deadly weapon becomes applicable. 7

14 In e present case, e trial court correctly determined at an affirmative finding of a deadly weapon was not applicable to e trial court's order of deferred adjudication, but was applicable to its order adjudicating appellant's guilt. In an unpublished opinion, is court agreed wi Sampson. Johnson v. State, 2002 WL , *3 (Tex. App. Dallas Aug. 5, 2002) [not designated for publication] ( Here, e affirmative finding of a deadly weapon became applicable after e trial court assessed imprisonment as punishment. We conclude e trial court correctly determined an affirmative finding of a deadly weapon was applicable to its order adjudicating appellant's guilt. ). In sum, e trial court s deadly weapon finding upon adjudicating Mr. Johnson s guilt appears to have been lawful. 8

15 CONCLUSION In accordance wi Anders v. California, 386 U.S. 738 (1967), counsel has examined e record for issues which might arguably support an appeal. In e opinion of counsel, as discussed above, e district court did not abuse its discretion in revoking Mr. Johnson s probation and adjudicating his guilt, e punishment was assessed in accordance wi e law, e deadly weapon finding in e judgment adjudicating Mr. Johnson s guilt was proper and ere is noing in e record to indicate at Mr. Johnson received ineffective assistance of counsel. Accordingly, counsel moves to widraw from is case in accordance wi Anders v. California. Respectfully submitted, _/s/ F. Clinton Broden F. CLINTON BRODEN Tex. Bar No Broden & Mickelsen 2600 State Street Dallas, Texas (214) (214) (facsimile) Attorney for Defendant-Appellant Deundra Johnson 9

16 CERTIFICATE OF SERVICE I, F. Clinton Broden, do hereby certify at, on is 6 of January, 2011, I caused a copy of e foregoing document to be served by first class mail, postage prepaid, on e Dallas County District Attorney s Office, 133 N. Riverfront Blvd., Dallas, Texas, and on Deundra Johnson, # , Middleton Unit, FM 3522, Abilene, TX /s/. F. Clinton Broden F. Clinton Broden 10