Opinion
No. 05-18-00057-CR No. 05-18-00058-CR
05-28-2019
KEN DEWAYNE JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court Dallas County, Texas
Trial Court Cause Nos. F16-10099-M & F16-10100-M
MEMORANDUM OPINION
Before Justices Myers, Molberg, and Carlyle
Opinion by Justice Carlyle
Following appellant Ken Dewayne Johnson's not-guilty pleas to murder and aggravated assault, a jury convicted him of both offenses in a single proceeding. In his sole issue on appeal, appellant contends the trial court erred by overruling his objection that the prosecutor struck at him over defense counsel's shoulders during closing. The State asserts in a cross-point that this Court should reform the trial court's judgments to correctly state the felony degree in the murder case and the sentencing dates in both cases. We modify the trial court's judgments and affirm both judgments as modified.
Although the trial court granted the State's December 11, 2017 motion to strike the "Dewayne" portion of appellant's name from the indictments in the underlying cases, the trial court's December 19, 2017 judgments and both parties' briefs in this Court describe appellant as "Ken Dewayne Johnson."
I. Background
Appellant was a police officer. At the time of this incident, he was off-duty and at home. Appellant looked out his apartment window about 7 p.m. one night to see a man removing the rear seats from his parked SUV and placing them into a red sedan. Appellant said he grabbed his handgun and keys, ran to his vehicle, and followed the sedan.
Appellant told police that while trying to catch up with the sedan, he "unintentionally made contact" with it and both vehicles "spun out" within about fifteen feet of each other. Appellant got out of his vehicle and approached the driver's side of the sedan with his gun drawn. Appellant told police (1) the sedan's driver "made a sudden movement taking his hand off the steering wheel and reached down into an area that suspects are known to keep weapons" and (2) he "believed that the suspect driver was reaching for a gun to draw and shoot me." Appellant fired sixteen shots into the sedan, killing the driver and wounding the passenger.
At trial, the State presented the medical examiner's testimony and report regarding the sedan driver's multiple gunshot wounds and the related bullet trajectories. During final summation, defense counsel argued the shooting was justified because that evidence supported the driver "reaching down." The State disagreed and argued,
Another very interesting thing about [appellant's two trial attorneys], when they were talking, kind of this revisionist approach to what the evidence shows. You got to see them when they were sitting out here in the well of the court, doing that kind of exaggerated move, that they are now both saying that [the sedan's driver] did. Remember that when he was with the medical examiner and he has his body over like that. Y'all need to know something really, really, really important. The only people in this entire room who has concocted that absurdity, are these two men.Defense counsel objected, stating "That's improper. That's striking at the defendant over the shoulder of counsel. And that misstates the evidence . . . implying concoction." The trial court overruled appellant's objection. Then, the State continued its summation, describing the evidence that it contended supported its argument regarding the driver's alleged movements.
After convicting appellant in both cases, the jury unanimously made an affirmative finding on the special issue of sudden passion in the murder case, assessed punishment at ten years' imprisonment in each case, and recommended that the aggravated assault sentence be suspended in favor of community supervision. The trial court imposed the jury's recommended sentence.
II. Striking at appellant over counsel's shoulders
We review a trial court's ruling on an objection to improper jury argument for abuse of discretion. See Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App. 2004). Permissible jury argument generally falls into one of four areas: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) an answer to the argument of opposing counsel, or (4) a plea for law enforcement. Davis v. State, 329 S.W.3d 798, 821 (Tex. Crim. App. 2010). Striking at a defendant over defense counsel's shoulders is impermissible, as it falls outside the generally permissible areas jury argument. Davis v. State, 268 S.W.3d 683, 712 (Tex. App.—Fort Worth 2008, pet. ref'd). It is difficult to articulate a precise rule to determine when a prosecutor is striking over the defense counsel's shoulder and when he is making a proper jury argument. Id. However, a prosecutor risks improperly striking at a defendant over the shoulder of counsel when the argument refers to defense counsel personally and when the argument explicitly impugns defense counsel's character. Id.
Appellant contends,
There is no question that when the prosecutor accused defense counsel of making up evidence, the argument was objectionable and prejudicial. The prosecutor attacked the defendant's counsel personally and attacked their character by accusing them of "concocting" evidence with regard to the defense they were presenting on behalf of the defendant. This is especially harmful in light of the defendant's testimony that he believed the deceased was, in fact, reaching for a weapon. Accusing defense counsel of concocting that "absurdity" is akin to accusing defense counsel of suborning perjury by the defendant.
In Davis, the State rebutted the defendant's claim of self-defense with the following jury argument: "[I]f you look at this case and you look at all the facts surrounding this case, there's no evidence to suggest that [the complainant] was armed. Those are machinations drawn up by the defense attorney." Id. at 713. The trial court in Davis overruled the defendant's objection that the State had "attacked Davis over the shoulders of defense counsel." Id. The appellate court affirmed, stating (1) "[v]iewing the prosecutor's statement in the context of the entire argument," the State's comment was "specifically in response to Davis's claim that [the complainant] was armed," and (2) "[b]y saying that the idea that [the complainant] was armed was a 'machination[ ] [of] the defense attorney' and continuing by emphasizing that there was no evidence presented to support such a claim, the prosecutor was properly answering an argument of opposing counsel." Id.
Here, the State's complained-of statement—that defense counsel "concocted that absurdity" regarding movements supporting self-defense—is virtually the same as the statement in Davis that defense counsel had "drawn up" "machinations" to support the defendant's claim of self-defense. See id. Based on Davis, we conclude (1) "viewing the prosecutor's statement in the context of the entire argument," the State's comment "was specifically in response" to appellant's claim that an alleged movement by the sedan driver demonstrated he was "reaching down" as if for a weapon, and (2) by saying that the idea that the sedan driver made the alleged movements was a "concocted . . . absurdity" and "continuing by emphasizing that there was no evidence presented to support such a claim," the prosecutor "was properly answering an argument of opposing counsel." Id. Thus, the trial court did not abuse its discretion by overruling appellant's objection to the complained-of statement.
III. State's cross-point
We have the authority to correct the judgment of the court below to make the record speak the truth when we have the necessary information to do so. See Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref'd); see also TEX. R. APP. P. 43.2(b). The trial court's judgment in appellant's murder case describes the "degree of offense" as "1st degree felony." Also, both judgments show "12/19/2017" under "date sentence imposed." In its cross-point, the State asserts (1) as a result of the jury's affirmative finding of sudden passion, the murder offense is a second-degree felony, and (2) the record shows the trial court imposed the sentences in both cases on January 9, 2018.
Based on the record, (1) in appellate case number 05-18-00057-CR, we modify the judgment in trial court cause number F16-10099-M to state that the "degree of offense" is "2nd degree felony," see TEX. PENAL CODE § 19.02(d), and the date sentence was imposed is "01/09/2018," and (2) in appellate case number 05-18-00058-CR, we modify the trial court's judgment in trial court cause number F16-10100-M to state that the date sentence was imposed is "01/09/2018."
IV. Conclusion
We decide against appellant on his issue and in favor of the State on its cross-point. We modify the trial court's judgments in the two underlying cases as described above and affirm both judgments as modified.
/Cory L. Carlyle/
CORY L. CARLYLE
JUSTICE Do Not Publish
Tex. R. App. P. 47.2(b)
180057F.U05
JUDGMENT
On Appeal from the 194th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F16-10099-M.
Opinion delivered by Justice Carlyle. Justices Myers and Molberg participating.
Based on the Court's opinion of this date, the judgment in trial court cause number F16-10099-M is MODIFIED to state that the "degree of offense" is "2nd degree felony" and the date sentence was imposed is "01/09/2018."
As MODIFIED, the judgment is AFFIRMED. Judgment entered this 28th day of May, 2019.
JUDGMENT
On Appeal from the 194th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F16-10100-M.
Opinion delivered by Justice Carlyle. Justices Myers and Molberg participating.
Based on the Court's opinion of this date, the judgment in trial court cause number F16-10100-M is MODIFIED to state that the date sentence was imposed is "01/09/2018."
As MODIFIED, the judgment is AFFIRMED. Judgment entered this 28th day of May, 2019.