Opinion
No. 05-15-00060-CR No. 05-15-00061-CR No. 05-15-00062-CR No. 05-15-00063-CR
04-28-2016
MARK ANTHONY JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2 Dallas County, Texas
Trial Court Cause Nos. F-13-59739-I; F-13-59740-I; F-13-59741-I; F-13-59742-I
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Schenck
Opinion by Justice Bridges
Mark Anthony Johnson appeals his four aggravated assault with a deadly weapon convictions. A jury convicted appellant and sentenced him to seven years' confinement in each case. In two issues, appellant argues he received ineffective assistance of counsel and challenges the legal sufficiency of the evidence to show the complainant in cause number 05-00061-CR was a member of appellant's household or an individual with whom appellant had a dating relationship. In a single cross-point, the State argues the judgment in each case should be reformed to correctly show a special finding of family violence. As reformed, we affirm the trial court's judgments.
Appellant was indicted on charges of intentionally and knowingly threatening T.H. and each of her children, P.S., S.H., and E.H., with a deadly weapon. At trial, T.H. testified she met appellant through an online dating service. About four months later, T.H. and her children moved in with appellant. T.H. was not working at that time, but she paid for groceries and appellant paid for the apartment and electricity. T.H.'s children, aged 14, 15, and 18, were all in school. T.H. and appellant were engaged to be married, but about a month later appellant asked T.H. and her children to move out unless T.H. got a job. T.H. got a job as a home health care aide, and she worked for about two weeks before appellant wanted T.H. and her children to move out again. At the time, the names on the apartment lease were appellant's, P.S.'s and S.H.'s. Nevertheless, T.H. agreed to move out when she had enough money.
About 11:00 p.m. on August 29, 2013, T.H. was asleep in the master bedroom when she was awakened by appellant "talking loud and telling [T.H.] that he want[ed] us to get out." T.H. believed appellant was intoxicated because he was "drinking before he left," and his speech was slurred. Appellant came in the bedroom where T.H. was still lying down, and he "jumped on the bed laying down, but he hit [T.H.] in [her] back." Appellant hit T.H. with a closed fist, and "it was intentional because it hurt." T.H. slapped appellant in the face, and appellant hit T.H. again, causing her to fall out of bed. T.H. got up, and twice appellant kicked her in the chest, causing her to hit the wall the first time and fall to the ground the second time. T.H. was in fear for her life. As T.H. crawled across the floor, appellant went into the closet and got a machete from the top shelf of the closet. The machete was a gift to S.H. from her grandfather before he died.
S.H. walked in the room and began arguing with appellant. Appellant looked at T.H. and swung the machete at her, but she grabbed appellant's hand and stopped him from hitting her with the machete. Appellant lifted T.H. to her feet and pushed her. S.H. ran and got a stool which she used to hit appellant while appellant chopped at the stool with the machete. By this time P.S. and E.H. were also in the room. Appellant started "doing karate moves with the machete" and "swinging it crossways." Appellant swung the machete at E.H. but hit a television when E.H. moved his hand. P.S. went to the kitchen to call the police, and appellant followed. T.H. grabbed the stool so she could use it to hit appellant if he started swinging the machete at her children. Appellant saw P.S. calling the police and swung the machete at her, but he missed P.S. and hit the counter. After P.S. called the police, appellant began to calm down. Appellant put his shirt on and retrieved his wallet from "the room" before sitting on the couch next to T.H.
S.H. testified appellant came to the door after 11:00 p.m. on August 29, 2013 and was "beating on the door." S.H. opened the door for appellant, and appellant "was mad" and he "walked to [T.H.'s] room real fast and closed the door and slammed the door closed." S.H. heard T.H. arguing with appellant, so she got up to see what was wrong. When S.H. walked in to T.H.'s bedroom, she found T.H. on her knees and saw appellant go into the closet and grab the machete. Appellant raised his arm like he was about to swing the machete at T.H., but T.H. grabbed appellant's arm and got up off the floor. Appellant ran to a "balcony door" inside the bedroom, and P.S. and E.H. came in to the room. E.H. leaned a hand on a television, and appellant "force[d] the machete toward" the television. E.H. moved his hand, and appellant hit the television with the machete. S.H. went to the living room, grabbed a stool, brought it back, and held the stool with the legs pointing toward appellant. P.S. left the room to call police. Appellant hit the stool "hard" with the machete and knocked it out of S.H.'s hands. S.H., T.H, and E.H. left the bedroom and went into the living room where P.S. was calling the police. Appellant entered the room and swung the machete at P.S., but he missed and "put a slice in the counter." Although S.H. did not remember what happened after appellant hit the counter, she remembered that T.H. took the machete out of appellant's hand.
The jury charge, among other things, contained the following definitions:
"Dating relationship" means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on consideration of the length of the relationship, the nature of the relationship, and the frequency and type of interaction between the persons involved in the relationship. A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a "dating relationship."
"Family" includes individuals related by consanguinity or affinity, individuals who are former spouses of each other, individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parent, without regard to whether those individuals reside together.
"Household" means a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other.
The application paragraph stated the following:
Now, bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt that on or about August 29, 2013, in Dallas County, Texas, the defendant, Mark Anthony Johnson, did unlawfully then and there intentionally and knowingly threaten [complainant] with imminent bodily injury, and said defendant did use and exhibit a deadly weapon, to-wit: a machete, during the commission of the assault, and you further find beyond a reasonable doubt that the said defendant has or has had a dating relationship with the said complainant or the said defendant was a member of the complainant's family or household, then you will find the defendant guilty of aggravated assault as charged in the indictment.The jury found appellant guilty in each case, and these appeals followed.
In his first issue, appellant argues trial counsel's failure to strike for cause Juror No. 12 violated his right to effective assistance of counsel. Specifically, appellant argues Juror No. 12 suffered from a lack of short term memory and, due to this disability, she was terrified of jury service and deliberation; she could not perceive trial testimony without the assistance of written memoranda; and, without the assistance of written memoranda during the deliberation process, she would become overly dependent on the other jurors' recollection of trial testimony.
To successfully assert an ineffective assistance of counsel challenge, an appellant must show that (1) counsel's representation fell below an objective standard of reasonableness and (2) the deficient performance prejudiced him; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. Rylander v. State, 101 S.W.3d 107, 109-10 (Tex. Crim. App. 2003). An ineffective assistance of counsel claim must be "firmly founded in the record," and the record must "affirmatively demonstrate" the claim has merit. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). We commonly assume a strategic motive if any can be imagined and find counsel's performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it. Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).
The court of criminal appeals has made clear that, in most cases, a silent record will not overcome the strong presumption of reasonable assistance. See Rylander, 101 S.W.3d at 110. Further, counsel should ordinarily be accorded the opportunity to explain her actions before being denounced as ineffective. Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012). If trial counsel is not given that opportunity, then an appellate court should not find deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Id.
Here, following voir dire and the seating of the jury, the trial judge held a hearing regarding the fitness of Juror No. 12. The trial judge introduced Juror No. 12 and said she "apparently told the bailiff that [she] couldn't remember [her] phone number." Juror No. 12 replied that she could remember her phone number but could not remember her daughter's phone number, which she had written down. Juror No. 12 said she was "really functional" as long as she "wrote everything down." Juror No. 12 stated she drives to the grocery store, church, and her friends' homes and pays all her bills. However, she stated she has short term memory problems. Juror No. 12 said she "would have forgotten some things" if she were not permitted to take her trial notes back during deliberations. Juror No. 12 clarified she would not have forgotten everything that was said at trial but would have forgotten "some of it," yet she could "manage" if she could trust the other jurors to "fill [her] in as [they] talked." Juror No. 12 stated she was "terrified" of serving on the jury because she "can't remember everything." She said she had worked at SMU, and she "edited all the graduates' thesis [sic]." When asked whether she could serve as a juror, Juror No. 12 responded as follows:
I don't. I really don't. I'm terrified. I'm just terrified because I don't know what to expect. I mean, I'm functioning. I drive my car. I pay all my bills. I can - I can navigate in most - you know, I can go to my friend's house. I can go to the church. I can't drive down here. My daughter would have to bring me.Juror No. 12 then left the courtroom.
The trial judge noted Juror No. 12 paid her own bills, drove a car, and "had a big book that she was down here reading." Defense counsel pointed out Juror No. 12 did not say "she had given a durable power of attorney to help in her decisions to someone in the family, which means she's in control in the details of her life." Defense counsel concluded that, even though Juror No. 12 had "issues," he did not think her issues were "severe enough."
The prosecutor deferred the issue to the court and said that, if defense counsel was "okay with the juror remaining on the panel," the State had no objection. However, the prosecutor asked that appellant "waive his right to appeal if any issue arises with this particular juror given the fact that [appellant] has the opportunity to say, you know what, I don't want to go with her, and [appellant is] saying he wants to proceed with her." The trial judge commented, "I think that would be waiving it right there." Defense counsel responded, "yes." Juror No. 12 remained on the jury, which convicted appellant of the charged offenses. These appeals followed.
In his first issue, appellant argues his trial counsel was ineffective for failing to strike Juror No. 12 for cause. We review appellant's claim under the standard set forth in Strickland v. Washington, 466 U.S. 668, (1984). Under Strickland, appellant must prove that his trial counsel's representation was deficient and that the deficient performance was so serious that it deprived him of a fair trial. Id. at 687. Counsel's representation is deficient if it falls below an objective standard of reasonableness. Id. at 688. This deficiency will deprive appellant of a fair trial only when counsel's performance prejudices appellant's defense. Id. at 691-92. To demonstrate prejudice, appellant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the claim of ineffectiveness. Id. at 697. This test is applied to claims arising under both the United States and Texas Constitutions. See Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986).
A sound trial strategy may be imperfectly executed, but the right to effective assistance of counsel does not entitle a defendant to errorless or perfect counsel. See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). As a reviewing court, we look to the totality of the representation and to the circumstances of the case, not to isolated instances in the record reflecting errors of commission or omission. Id. Moreover, we consider the adequacy of assistance as viewed at the time of trial, rather than through hindsight. Id. at 482.
Our review of defense counsel's performance is highly deferential, beginning with the strong presumption that the attorney's actions were reasonably professional and motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Ordinarily, counsel must be accorded an opportunity to explain his actions before being condemned as unprofessional and incompetent. See Bone v. State 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). When the record is silent as to trial counsel's strategy, we will not conclude that appellant received ineffective assistance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." See Goodspeed, 187 S.W.3d at 392.
It is permissible for trial counsel to retain a juror who is actually biased for strategic or tactical reasons. State v. Morales, 253 S.W.3d 686, 698 (Tex. Crim. App. 2008). Here, Juror No. 12 expressed no bias. On the contrary, Juror No. 12 appeared conscientious and, if anything, overly concerned with bringing her human frailty to the court's attention. Juror No. 12 stated she was "really functional" as long as she "wrote everything down." Juror No. 12 stated she drives to the grocery store, church, and her friends' homes and pays all her bills. Although Juror No. 12 stated she was "terrified" of serving as a juror and had short term memory problems, she had worked at SMU, had edited graduate theses, and was reading a "big book" on the day of voir dire. Defense counsel noted that Juror No. 12 was "in control of the details of her life." Under these circumstances, we conclude the record does not establish that trial counsel could not make a legitimate tactical decision to keep Juror No. 12 on the jury. See id. We overrule appellant's first issue.
In his second issue, appellant argues the evidence is legally insufficient to show the complainant in cause number 05-15-00061-CR was a member of appellant's household or an individual with whom appellant had a dating relationship. Specifically, appellant argues that, because P.S. did not testify at trial, the evidence "left the Jury with no reference point to determine" the family relationship between appellant and P.S. such that it could convict appellant under the indictment.
When reviewing the legal sufficiency of the evidence, we examine all of the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). Although we consider everything presented at trial, we do not reevaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Because the jury is the sole judge of the credibility of witnesses and of the weight given to their testimony, any conflicts or inconsistencies in the evidence are resolved in favor of the verdict. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). Our review includes both properly and improperly admitted evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We also consider both direct and circumstantial evidence, as well as any reasonable inferences that may be drawn from the evidence. Id.
The indictment in cause number 05-15-00061-CR alleged appellant:
did unlawfully then and there intentionally and knowingly threaten [P.S.] with imminent bodily injury, and said defendant did use and exhibit a deadly weapon, to-wit: a MACHETE, during the commission of the assault, and further, the said defendant has and has had a dating relationship with the said complainant and the said defendant was a member of the complainant's family and household.The jury charge defined "dating relationship," "family," and "household" and instructed the jury to find appellant guilty of aggravated assault as charged in the indictment if it found appellant threatened P.S. with a deadly weapon, a machete, during the commission of the assault and further found appellant had a dating relationship with P.S. or appellant was a member of P.S.'s family or household. Both T.H. and S.H. testified that appellant swung the machete at P.S. but missed and hit a counter. T.H. testified she and her children, including P.S., moved in with appellant, and P.S.'s name was on the lease along with appellant's and S.H.'s. The jury found appellant guilty of aggravated assault, as charged in the indictment.
The evidence is clearly sufficient to show appellant threatened P.S. with a machete, and P.S. was a member of appellant's household at the time. See Temple, 390 S.W.3d at 360. However, appellant points out the indictment alleged appellant had a dating relationship with P.S. and appellant was a member of P.S.'s family and household. Appellant argues it is "undisputed" that penal code section 22.02(b) requires the State to establish, among other things, that P.S. was "either (1) a person with whom Appellant has or had a continuing relationship of a romantic nature; (2) a family member, including individuals related by consanguinity or affinity, individuals who are former spouses of each other, individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parent, without regard to whether those individuals reside together; or (3) a member of his household, meaning a unit composed of persons living together in the same dwelling without regard to whether they are related to each other." Appellant argues "the fact that the jury heard no evidence at trial regarding the existence of a 'dating relationship'" between appellant and P.S. "constituted a material variance and departure from the specific statutory elements alleged in the indictment, the jury charge and the evidence."
In cases involving a sufficiency claim based on a variance between the indictment and the evidence, rather than reviewing the evidence under the traditional sufficiency standards, we must instead consider the materiality of the variance. Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim. App. 2002); Rogers v. State, 200 S.W.3d 233, 236 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd). A variance is fatal, i.e., renders the evidence insufficient, only when it is material. Fuller, 73 S.W.3d at 253; Rogers, 200 S.W.3d at 236. "A variance is material if it (1) deprived the defendant of sufficient notice of the charges against him such that he could not prepare an adequate defense, or (2) would subject him to the risk of being prosecuted twice for the same offense." Rogers, 200 S.W.3d at 236 (citing Fuller, 73 S.W.3d at 253). In addition, the burden of demonstrating the materiality of a variance rests with the defendant. Id. at 237 (citing Santana v. State, 59 S.W.3d 187, 194-95 (Tex. Crim. App. 2001)).
Penal code section 22.02 provides that a person commits aggravated assault if he intentionally or knowingly threatens another with imminent bodily injury and uses or exhibits a deadly weapon during the commission of the assault. TEX. PENAL CODE ANN. §§22.01(a)(2), 22.02(a)(2) West 2011 & Supp. 2015). An offense under section 22.02 is a felony of the second degree, except that the offense is a felony of the first degree if the actor uses a deadly weapon during the commission of the assault and causes serious bodily injury to a person whose relationship is described by sections of the family code describing a dating relationship, a family relationship, and a household relationship. Id. §22.02(b)(1). A felony of the second degree carries a punishment range of two to twenty years' confinement and a fine not to exceed $10,000. Id. §12.33.
Section 22.02 only requires a showing of a dating, family, or household relationship when a defendant causes serious bodily injury to a person whose relationship with the defendant is a dating, family, or household relationship and the serious bodily injury to such a person is used to raise an aggravated assault from a felony of the second degree to a felony of the first degree. The indictments, the court's charge to the jury in each case, and the evidence adduced at trial did not allege or prove that appellant caused serious bodily injury to T.H. or any of her children. The court's charge at punishment in each case authorized the jury to impose a sentence of confinement for a term of years not more than twenty years nor less than two years, the punishment range applicable to a second degree felony. The judgments of conviction show the "statute for the offense" was 22.02(a)(2), use or exhibition of a deadly weapon during an assault, and the "degree of offense" was "2ND DEGREE FELONY." Thus, it is clear the dating, family, and household language in the indictments and the court's charge in each case was not included in an attempt to elevate the offense of aggravated assault from a felony of the second degree to a felony of the first degree. Instead, it appears the reference to a dating, family, and household relationship was included in order to secure a finding of family violence in each case.
"Family violence" means, among other things, an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault or sexual assault. TEX. FAM. CODE ANN. §71.004(1) (West Supp. 2015). Family violence also includes dating violence. Id. §71.004(3). In the trial of an offense under Title 5 of the penal code, which includes aggravated assault, if the court determines that the offense involved family violence as defined by section 71.004 of the family code, the court shall make an affirmative finding of that fact and enter the affirmative finding in the judgment of the case. TEX. CODE CRIM. PROC. ANN. art. 42.013 (West Supp. 2015). A finding of family violence impacts a defendant's sentence only if the defendant has previously committed a family-violence assault. Thomas v. State, 150 S.W.3d 887, 888 (Tex. App.—Dallas 2004, pet. ref'd). It does not appear that appellant had committed a family-violence assault prior to the charged offenses. Thus, the family violence finding made here had no effect whatsoever on appellant's punishment in this case. See id. Under these circumstances, the jury was not required to hear testimony from P.S. regarding her apparently nonexistent "dating relationship" with appellant in order to find appellant threatened P.S. with a deadly weapon. The absence of such testimony had no bearing on the State's burden to prove the elements of aggravated assault alleged in the indictment and had no effect on punishment. See id. Nor has appellant established that the allegation in the indictment that he had a dating relationship with P.S. constituted a material variance. See Rogers, 200 S.W.3d at 236-37. We overrule appellant's second issue.
In a single cross-point, the State argues the judgment in each case should be reformed to reflect the court's family violence determination. As discussed above, the court's charge in each case required the jury to find that appellant (1) intentionally or knowingly threatened each complainant with imminent bodily injury and used and exhibited a deadly weapon and (2) was in a dating relationship with the complainant or was a member of complainant's family or household as charged in the indictment before finding appellant guilty of aggravated assault. The jury found appellant guilty of aggravated assault as charged in the indictment. The trial court is statutorily obligated to enter an affirmative finding of family violence in its judgment if, during the guilt phase of trial, the court determines that the offense involved family violence as defined by family code section 71.004. See id.; Butler v. State, 189 S.W.3d 299, 302 (Tex. Crim. App. 2006). An appellate court has the power to reform an incorrect trial court judgment to "make the record speak the truth when the matter has been called to its attention by any source." French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (citing Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.—Dallas 1991, pet. ref'd)). Accordingly, we sustain the State's cross-point and reform the judgment in each case to reflect a finding of family violence.
As reformed, we affirm the trial court's judgments.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b) 150060F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 2, Dallas County, Texas
Trial Court Cause No. F-13-59739-I.
Opinion delivered by Justice Bridges. Justices Lang-Miers and Schenck participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to include under the heading "Furthermore, the following special findings or orders apply:"
The court finds that defendant was prosecuted for an offense under Title 5 of the Texas Penal Code that involved family violence. TEX. CODE CRIM. PROC. ANN. art. 42.013.As REFORMED, the judgment is AFFIRMED. Judgment entered April 28, 2016.
JUDGMENT
On Appeal from the Criminal District Court No. 2, Dallas County, Texas
Trial Court Cause No. F-13-59740-I.
Opinion delivered by Justice Bridges. Justices Lang-Miers and Schenck participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to include under the heading "Furthermore, the following special findings or orders apply:"
The court finds that defendant was prosecuted for an offense under Title 5 of the Texas Penal Code that involved family violence. TEX. CODE CRIM. PROC. ANN. art. 42.013.As REFORMED, the judgment is AFFIRMED. Judgment entered April 28, 2016.
JUDGMENT
On Appeal from the Criminal District Court No. 2, Dallas County, Texas
Trial Court Cause No. F-13-59741-I.
Opinion delivered by Justice Bridges. Justices Lang-Miers and Schenck participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to include under the heading "Furthermore, the following special findings or orders apply:"
The court finds that defendant was prosecuted for an offense under Title 5 of the Texas Penal Code that involved family violence. TEX. CODE CRIM. PROC. ANN. art. 42.013.As REFORMED, the judgment is AFFIRMED. Judgment entered April 28, 2016.
JUDGMENT
On Appeal from the Criminal District Court No. 2, Dallas County, Texas
Trial Court Cause No. F-13-59742-I.
Opinion delivered by Justice Bridges. Justices Lang-Miers and Schenck participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to include under the heading "Furthermore, the following special findings or orders apply:"
The court finds that defendant was prosecuted for an offense under Title 5 of the Texas Penal Code that involved family violence. TEX. CODE CRIM. PROC. ANN. art. 42.013.As REFORMED, the judgment is AFFIRMED. Judgment entered April 28, 2016.