Opinion
No. 05-19-00583-CR
05-19-2020
JALVIS BERNARD JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court Dallas County, Texas
Trial Court Cause No. F17-75868-V
MEMORANDUM OPINION
Before Justices Whitehill, Osborne, and Carlyle
Opinion by Justice Carlyle
A jury convicted appellant Jalvis Bernard Johnson of engaging in organized criminal activity and assessed punishment at ninety years' imprisonment. In two issues on appeal, Mr. Johnson contends the jury charge was erroneous and the judgment contains inaccuracies that should be reformed. We affirm the trial court's judgment as modified in this memorandum opinion. See TEX. R. APP. P. 47.4.
The indictment charged Mr. Johnson with engaging in organized criminal activity by committing and conspiring to commit aggravated robbery "with intent to establish, maintain, and participate in a combination and in the profits of a combination." The State's evidence included testimony of a Dallas police detective who assisted in investigating a "rash" of 2016 "home invasion robberies" committed "in a similar manner." The investigation identified eighteen people, including Mr. Johnson, as "collaborating together" on those multiple robberies.
In his first issue, Mr. Johnson contends "[t]he jury charge erroneously failed to instruct the jury that, to be guilty, Johnson must have collaborated with other people in a continuing course of criminal activities." The abstract portion of the trial court's jury charge contained several definitions, including:
A person commits the offense of ENGAGING IN ORGANIZED CRIMINAL ACTIVITY if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination, he commits aggravated robbery.
. . . .
"Combination" means three or more persons who collaborate in carrying on criminal activities, although:
1. Participants may not know each other's identity;
2. Membership in the combination may change from time to time; and
3. Participants may stand in a wholesaler-retailer or other arm's-length relationship in illicit distribution operations.
The jury charge's application paragraph instructed the jury that "the defendant committed engaging in organized criminal activity if the State has proved, beyond a reasonable doubt, that, on or about and between October 6, 2016 and February 7, 2017, in Dallas County, Texas, the defendant committed aggravated robbery, as just explained, with the intent to establish, maintain, or participate in a combination or in the profits of a combination."
Appellate review of purported jury charge error involves two steps: first, we consider whether the jury charge was erroneous, and second, if error occurred, we consider whether sufficient harm resulted to require reversal. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015).
The trial court must "deliver to the jury . . . a written charge distinctly setting forth the law applicable to the case." TEX. CODE CRIM. PROC. art. 36.14. The "law applicable to the case" includes each statutory definition that affects the meaning of the offense's elements. Ouellette v. State, 353 S.W.3d 868, 870 (Tex. Crim. App. 2011); Villarreal v. State, 286 S.W.3d 321, 329 (Tex. Crim. App. 2009). "[A] proper charge consists of an abstract statement of the law applicable to the case and such application paragraph or paragraphs as are necessary to apply that law to the facts." Fraser v. State, 593 S.W.3d 883, 888 (Tex. App.—Amarillo 2019, pet. ref'd).
A person engages in organized criminal activity if, "with the intent to establish, maintain, or participate in a combination or in the profits of a combination," the person commits or conspires to commit one or more statutorily enumerated offenses. TEX. PENAL CODE §§ 71.02(a), (a)(1) (including aggravated robbery as enumerated offense). "Combination" means "three or more persons who collaborate in carrying on criminal activities, although: (1) participants may not know each other's identity; (2) membership in the combination may change from time to time; and (3) participants may stand in a wholesaler-retailer or other arm's-length relationship in illicit distribution operations." Id. § 71.01(a).
According to Mr. Johnson, Nguyen v. State, 1 S.W.3d 694 (Tex. Crim. App. 1999), held that section 71.01(a)'s language requires a "continuing course" of criminal activities, obligating the State to prove not just an agreement to jointly commit a single crime, but "that the members of the group intended to work together in a continuing course of criminal activity." The application paragraph here did not require proof of continuity, which he claims was egregiously harmful error.
Unlike this case, Nguyen involved a review of the sufficiency of the evidence, which differs from a charge-error analysis. See Kirsch v. State, 357 S.W.3d 645, 651 (Tex. Crim. App. 2012). We note that a sister court of appeals has considered and rejected a charge-error argument substantially similar to that asserted here. See Nava v. State, 379 S.W.3d 396 (Tex. App.—Houston [14th Dist.] 2012), aff'd on other grounds 415 S.W.3d 289 (Tex. Crim. App. 2013).
Nava was charged with organized criminal activity following an undercover operation to identify individuals buying and reselling stolen goods. See 379 S.W.3d at 401. Trial focused on a particular transaction regarding a truckload of purportedly stolen televisions. Id. at 401-02. In the jury charge, the trial court defined "collaborate in carrying on criminal activities" as "working together with a specified number of others in specified criminal activities." Id. at 420. During the charge conference, the defendant argued that the charge did not clearly inform the jury that a "combination" requires more than commission of a single underlying offense. Id. at 421. The defendant requested submission of a definition based on Nguyen, which the trial court denied. Id.
The court of appeals affirmed, stating that although "the requested definition more clearly conveys that appellants must have intended for the combination to engage in continuing criminal activities," the definition provided by the trial court "was not an inaccurate statement of the law" and "refer[red] to multiple criminal activities." Id. Accordingly, the court of appeals concluded the trial court did not err by denying the requested additional instruction. Id.
Here, the jury charge's abstract and application portions tracked the language of the applicable statutory provisions, including section 71.01(a)'s term "criminal activities." See id.; see also Arteaga v. State, 521 S.W.3d 329, 338 (Tex. Crim. App. 2017) (quoting Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012) (stating abstract paragraphs of jury charge "serve as a glossary to help the jury understand the meaning of concepts and terms used in the application paragraphs of the charge")). Mr. Johnson cites no authority, and we have found none, requiring a trial court to sua sponte add the instruction he describes. "[S]pecial, non-statutory instructions, even when they relate to statutory offenses or defenses, generally have no place in the jury charge." Beltran De La Torre v. State, 583 S.W.3d 613, 617 (Tex. Crim. App. 2019) (quoting Walters v. State, 247 S.W.3d 204, 211 (Tex. Crim. App. 2007)); see also Kirsch, 357 S.W.3d at 651 (quoting Walters, 247 S.W.3d at 214). We conclude the alleged omission Mr. Johnson complains of did not constitute jury charge error and thus do not assess harm. See Beltran De La Torre, 583 S.W.3d at 617; Kirsch, 357 S.W.3d at 649, 651; Nava, 379 S.W.3d at 421.
In his second issue, Mr. Johnson asserts, and the State agrees, the trial court's judgment "should be reformed to accurately reflect that Johnson did not waive a jury trial, that his 90-year sentence was not the result of a plea bargain, and that his attorney was not Charles Allan." Based on the record, we modify the trial court's judgment to reflect that Mr. Johnson did not waive a jury trial, that his 90-year sentence was not the result of a plea bargain, and that his attorneys at trial were Robbie McClung and Richard Franklin. See Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); TEX. R. APP. P. 43.2(b).
* * *
We decide against Mr. Johnson on his first issue and sustain his second issue. We affirm the trial court's judgment as modified.
/Cory L. Carlyle/
CORY L. CARLYLE
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
190583F.U05
JUDGMENT
On Appeal from the 292nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F17-75868-V.
Opinion delivered by Justice Carlyle. Justices Whitehill and Osborne participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to reflect that appellant Jalvis Bernard Johnson did not waive a jury trial, that his 90-year sentence was not the result of a plea bargain, and that his attorneys at trial were Robbie McClung and Richard Franklin. As MODIFIED, the judgment is AFFIRMED. Judgment entered this 19th day of May, 2020.