Michael Dan Allen Johnson v. State
05-14-00713-CR
| Tex. App. | Dec 29, 2015Background
- 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 he met online.
- Sentences: seven years for aggravated kidnapping and seven years for pornography, to run concurrently, and sixteen years for aggravated sexual assault of a child, stacked.
- In three related appeals, Johnson challenged the trial court’s handling of a pro se motion to substitute counsel as not heard or granted.
- Johnson argued the aggravated kidnapping convictions reflected two counts for a single offense, raising double jeopardy concerns.
- In the aggravated sexual assault case, Johnson challenged territorial jurisdiction since acts occurred in Colorado; the State conceded error on that point.
- The court partially granted relief by modifying the judgments: acquitting in the sexual assault case and amending the other judgments to reflect proper concurrency and single-count framing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Failure to hear substitute-counsel motion | Johnson contend[s] trial court erred by not holding a hearing | Johnson's motion was not presented to or heard by the court | No abuse; the motion not preserved for appeal |
| Double jeopardy for aggravated kidnapping | Indictment labeled two counts for one offense | Two counts reflect alternate aggravating factors for a single offense | Not multiple offenses; continued single conviction for aggravated kidnapping |
| Territorial jurisdiction for aggravated sexual assault of a child | Texas had jurisdiction | Acts occurred in Colorado, no jurisdiction | Lacked territorial jurisdiction; acquittal rendered |
| Judgment modifications and concurrency | Judgments should clarify concurrency and reflect single-count status | Requests within the State's control to align judgments with record | Judgments modified as requested; affirmed as modified |
Key Cases Cited
- Malcolm v. State, 628 S.W.2d 790 (Tex. Crim. App. 1982) (preservation of claims requires trial‑court notice)
- Llamas v. State, 270 S.W.3d 274 (Tex. App.—Amarillo 2008) (lack of motion presentation preserved error rule)
- Bowen v. State, 2013 WL 3874760 (Tex. App.—Fort Worth 2013) (motion to substitute counsel not properly presented)
- Gonzales v. State, 270 S.W.3d 282 (Tex. App.—Amarillo 2008) (state may plead alternate aggravating factors for a single offense)
- Owens v. State, 96 S.W.3d 668 (Tex. App.—Austin 2003) (substance governs whether a matter is a count or paragraph)
- Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) (aggravating factors must be tied to a single offense)
- Asberry v. State, 813 S.W.2d 526 (Tex. App.—Dallas 1991) (court has authority to correct judgments to reflect truth)