Johnson, Bennie Jr.
PD-1477-15
| Tex. App. | Dec 18, 2015Background
- Bennie Johnson was convicted by a jury of aggravated sexual assault (Tex. Penal Code § 22.021) and sentenced to consecutive life terms; appeal was processed through the Sixth Court of Appeals which affirmed.
- The complainant testified she accepted a ride, was pulled from a vehicle, threatened with a gun, forced to perform oral sex, chased, thrown to the ground, and sexually assaulted; she also testified she had consensual intercourse earlier that day with another man ("Michael").
- Medical records and investigating officer testimony indicated no visible injuries consistent with the complainant’s account; a DPS lab report identified a sperm-cell fraction consistent with a mixture including Johnson, the complainant, and an unknown contributor.
- Defense counsel advised Johnson that presenting a consensual-sex defense would require Johnson to testify; Johnson later argued counsel was unprepared and lacked a trial strategy.
- Johnson’s pro se issues: (1) sufficiency of the evidence; (2) ineffective assistance of trial counsel for (a) failing to present a coherent strategy, (b) ‘‘opening the door’’ to extraneous-offense evidence by having Johnson testify, and (c) failing to investigate/seek alternative DNA testing (e.g., test "Michael").
- The Sixth Court of Appeals independently reviewed the record under Anders and concluded the appeal was frivolous and affirmed; counsel was permitted to withdraw.
Issues
| Issue | Plaintiff's Argument (Johnson) | Defendant's Argument (State / Appellate Court) | Held |
|---|---|---|---|
| Sufficiency of evidence for aggravated sexual assault | Evidence was insufficient: medical records showed no injuries, DNA was mixed/uncertain, and complainant’s motives and credibility were suspect | The State contends evidence supports the jury’s verdict; appellate court found no reversible error | Affirmed — appellate court found no arguable issue of insufficiency |
| Ineffective assistance — failure to present trial strategy | Counsel lacked preparation/strategy and coerced Johnson to testify to present consensual-defense, which opened the door to harmful evidence | The record was reviewed; appellate court found no reversible error and concluded appeal frivolous under Anders | Appeal dismissed on merits review; no relief granted |
| Ineffective assistance — opening the door to extraneous-offense evidence | Forcing defendant to testify opened door to evidence that prejudiced defense; alternative strategies (impeachment, witness testing) were available | Appellate court found counsel’s performance did not present a reversible claim on direct appeal | No relief — claim not successfully raised on direct appeal |
| Ineffective assistance — failure to investigate DNA (test "Michael") | Counsel failed to investigate/obtain testing of the unknown DNA to impeach complainant’s account | Appellate court determined no arguable issue for appeal; record did not merit reversal under Anders review | No relief — appellate court affirmed judgment |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (establishes standard for appellate review of sufficiency of evidence)
- Strickland v. Washington, 466 U.S. 668 (effective-assistance-of-counsel two-part test)
- Anders v. California, 386 U.S. 738 (procedure when appellate counsel seeks to withdraw as frivolous)
- Crane v. Kentucky, 476 U.S. 683 (right to present a defense and to challenge evidence)
- Washington v. State of Texas, 388 U.S. 14 (compulsory process and right to present witnesses)
- Powell v. Alabama, 287 U.S. 45 (right to counsel as fundamental to fair trial)
- Glover v. United States, 531 U.S. 198 (prejudice from counsel error may be non-de minimis, e.g., longer sentence)
- Bell v. Cone, 535 U.S. 685 (standards for assessing ineffectiveness claims on habeas review)