Michael Dan Allen Johnson v. State
05-14-00714-CR
| Tex. App. | Dec 29, 2015Background
- Michael Dan Allen Johnson was convicted after a bench trial of aggravated kidnapping, possession/promotion of child pornography, and aggravated sexual assault of a child involving a thirteen-year-old girl (TP).
- Johnson traveled from Washington to Texas with TP after meeting online, later staying in Colorado where TP claimed they had sexual activity.
- The trial court imposed concurrent seven-year terms for aggravated kidnapping and pornography, and a sixteen-year term for aggravated sexual assault, with the sentences stacked.
- Johnson raised a pro se motion to substitute counsel; the trial court never held a hearing on it and Johnson did not alert the court to the motion at any appearance.
- The State challenges the judgments in two cases for accuracy (concurrent sentencing and a single count of aggravated kidnapping) and concedes territorial-jurisdiction error in the aggravated sexual assault case, leading to a court-ordered modification and acquittal in one case.
- The court reverses and acquits in the aggravated sexual assault case, and modifies the other two judgments to reflect a single count and concurrency.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation of pro se substitute-counsel motion | Johnson's motion to substitute counsel warranted a hearing. | Record shows no hearing or attention to the motion by the court. | No abuse; motion not preserved for appeal. |
| Double jeopardy for aggravated kidnapping | Johnson was convicted of two counts for a single kidnapping offense. | Indictment labeled counts but alleged alternate aggravating factors for a single offense. | Conviction for a single aggravated-kidnapping offense; no double jeopardy violation. |
| Territorial jurisdiction for aggravated sexual assault of a child | Agg. sexual assault committed in Colorado; Texas lacks jurisdiction. | State concedes error; Texas lacks territorial jurisdiction. | Jurisdiction lacking; acquittal entered. |
| Judgment modifications and concurrence | Judgments should reflect proper counts and concurrent sentences as appropriate. | Court has authority to correct judgments to reflect the record. | Judgments modified to reflect a single aggravated-kidnapping count and concurrency; acquittal in the sexual-assault case; affirm as modified. |
Key Cases Cited
- Malcolm v. State, 628 S.W.2d 790 (Tex. Crim. App. 1982) (preservation of counsel-substitution motions requires trial-court alert)
- Llamas v. State, 270 S.W.3d 274 (Tex. App.—Amarillo 2008) (preservation of pro se motions to substitute counsel)
- Bowen v. State, 2013 WL 3874760 (Tex. App.—Fort Worth 2013) (pro se motion not presented to trial court cannot be appealed)
- Owens v. State, 96 S.W.3d 668 (Tex. App.—Austin 2003) (distinguishes count versus paragraph in charging terminology)
- Martinez v. State, 225 S.W.3d 550 (Tex. Crim. App. 2007) (substance governs whether charging units are counts or paragraphs)
- Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) (aggravating factors in aggravated kidnapping; multiple factors do not create multiple offenses)
- Gonzales v. State, 270 S.W.3d 282 (Tex. App.—Amarillo 2008) (indictment may plead alternate aggravating factors for a single offense)
- Rodriguez v. State, 146 S.W.3d 674 (Tex. Crim. App. 2004) (territorial jurisdiction framework for offenses)
- Asberry v. State, 813 S.W.2d 526 (Tex. App.—Dallas 1991) (court authority to correct judgments to reflect truth in the record)