Case Information
*0 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 9/21/2015 9:33:00 AM DEBBIE AUTREY Clerk *1 ACCEPTED 06-14-00194-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS No. 06-14-00194-CR 9/21/2015 12:00:00 AM DEBBIE AUTREY CLERK I N T HE C OURT O F A PPEALS F OR T HE S IXTH S UPREME J UDICIAL D ISTRICT A T T EXARKANA , T EXAS
Bennie Johnson, Appellant
v.
The State of Texas, State
Appealed from the 102nd Judicial District Court Bowie County, Texas
BRIEF FOR THE STATE The State Does Not Request Oral Argument Respectfully submitted: Jerry D. Rochelle Criminal District Attorney Bowie County, Texas 601 Main Street Texarkana, Texas 75501 By: Lauren N. Sutton Assistant District Attorney 601 Main Street Texarkana, Texas 75501 Texas Bar No. 24079421 Attorneys for the State *2 In The Court of Appeals
For the Sixth Supreme Judicial District At Texarkana, Texas
Bennie Johnson, § Nos. 06-14-00194-CR
Appellant §
§
v. §
§
The State of Texas, §
State § BRIEF FOR THE STATE §
Identity of the Parties
The following is a complete list of all the parties to the trial court’s judgment as required by the provisions of Rule 38.2(a) of the Texas Rules of Appellate
Procedure:
1. Defendant and Appellant:
Bennie Johnson
Pro Se
TDCJ No. 1970053
Mark w. Stiles Unite
3060 FM 3514
Beaumont, Tx 77705
2. Attorneys for Appellant on appeal:
Derric S. McFarland
816 Pine Street
P.O. Box 1048
Texarkana, TX 75501
i
3. Attorneys for Appellant at trial:
Mr. John Stroud
515 Main Street
Texarkana, Texas 75501
4. Attorney for the State of Texas at trial:
Kelley Crisp
Samantha Oglesby
Assistant District Attorneys
Bowie County, Texas
601 Main Street
Texarkana, Texas 75501
5. Attorney for the State of Texas on appeal:
Lauren N. Richards
Assistant District Attorney
Texas Bar No. 24079421
601 Main Street
Texarkana, Texas 75501
Lauren.sutton@txkusa.org
6. Presiding Judge at trial:
The Honorable Bobby Lockhart
District Court Judge
102nd Judicial District
Bowie County, Texas
Bi-State Justice Building
100 North State Line Avenue
Texarkana, Texas 75501
ii
Table of Contents
Identity of the Parties and Counsel ......................................................................... i-ii
Table of Contents ..................................................................................................... iii
Index of Authorities .................................................................................................. iv
Statement of the Case ................................................................................................. 1
Reply to Points of Error ............................................................................................. 2
Argument.............................................................................................................. 3-13
Reply to Point of Error Number One ................................................ 3-7 The evidence is legally sufficient to support Appellant’s conviction
Reply to Points of Error Number Two and Three ........................... 8-13 The Appellant did not receive ineffective assistance of counsel Prayer for Relief ....................................................................................................... 14
Certificate of Compliance ........................................................................................ 15
Certificate of Service ............................................................................................... 16
iii
Index of Authorities
Cases
Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007 ................................ 4
Jackson v. Virginia , 443 U.S. 307, 319 (1979) ....................................................... 3,4
Lopez v. State , 343 S.W.3d 137 (Tex. Crim. App. 2011) .......................................... 8
Malik v. State , 953 S.W.2d 234 (Tex. Crim. App. 1997) .......................................... 4
Smith v. State , 84 S.W.3d 38 (Tex. App.—Texarkana 2002, no pet.) ....................... 9
Strickland v. Washington , 466 U.S. 668 (1984) ................................................... 8,12
Thompson v. State , 9 S.W.3d 808 (Tex. Crim. App. 1999) ....................................... 9
Williams v. State , 235 S.W.3d 742 (Tex. Crim. App. 2007) ..................................... 4
Wong v. Belmontes , 130 S Ct. 383 (2009) ............................................................... 12
Texas Penal Code
Tex. Penal Code § 22.021 .......................................................................................... 5
iv
Statement of the Case Appellant, Bennie Johnson was found guilty of aggravated sexual assault.
The jury assessed punishment at life sentences, to be served consecutively in the
Texas Department of Criminal Justice- Institutional Division. The Judge sentenced
the Appellant accordingly. The Appellant’s court-appointed appellate attorney filed
a Bfief in Support of Appellant Counsel’s Motion to Withdraw (Anders Brief) on
April 17, 2015. The Appellant then filed a brief, pro se appealing his conviction on
three points of error.
Reply to Points of Error R EPLY TO P OINT OF E RROR N UMBER O NE : The evidence presented at trial is legally sufficient to support the Appellant’s conviction.
R EPLY TO P OINT OF E RROR N UMBER T WO AND T HREE : The Appellant did not receive ineffective assistance of counsel and was not prejudiced by his counsel’s failure to object.
Argument Reply to Points of Error One The evidence presented at trial is legally sufficient to support the Appellant’s conviction.
In his first point of error, the Appellant challenges the legal sufficiency of the evidence used to convict Appellant of aggravated sexual assault. Appellant
argues that the testimony of the State’s witnesses is insufficient to support his
conviction. However, viewing the evidence presented at trial in the light most
favorable to the verdict, it is clear that sufficient evidence was presented through
the victim’s testimony and the testimony of the other witnesses for the State from
which a rational jury could have found beyond a reasonable doubt that the
Appellant committed the offense of aggravated sexual assault.
Argument and Authorities In reviewing the sufficiency of the evidence, this Court should apply the standard set out in Jackson v. Virginia , 443 U.S. 307 (1979). This standard requires
a reviewing court to examine all the evidence in the light most favorable to the
verdict to determine whether a rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. [1] This standard of review
*9 applies to cases involving both direct and circumstantial evidence. [2] The reviewing
court should consider everything presented at trial but should not substitute their
own judgment regarding the weight and credibility of the evidence for that of the
fact finder. [3] Further, an appellate court presumes the fact finder resolved
conflicting inferences in favor of the verdict, and defers to that determination. [4] The
question is not whether the appellate court itself believes the defendant is guilty
beyond a reasonable doubt, but whether viewing the evidence in the light most
favorable to the verdict, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. [5]
Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. [6] The hypothetically correct jury
charge sets out the law, is authorized by the indictment, does not unnecessarily
increase the State‘s burden of proof or unnecessarily restrict the State‘s theories of
liability, and adequately describes the particular offense for which the defendant
was tried. [7] In this case, Appellant committed aggravated sexual assault if he
intentionally or knowingly caused the penetration of the sexual organ of the victim,
*10 without her consent, and by acts or words, threatened to cause or place the victim
in fear that death would be imminently inflicted on the victim.
B. Application of Law to Facts
To prevail in a case of aggravated sexual assault, the State must prove beyond a reasonable doubt the defendant intentionally or knowingly causes the
penetration of the anus or sexual organ of another person by any means without
that person’s consent, and by acts or words, places the victim in fear that death,
serious bodily injury, or kidnapping will imminently inflicted upon any persons or,
by acts or words occurring in the presence of the victim, threatens to cause the
death, serious bodily injury, or kidnapping of any person. [8]
The Appellant argues the evidence is insufficient because the testimony of witnesses agree that the physical and medical evidence is inconsistent with the
sexual assault. He also contends the DNA evidence presented at trial creates a
reasonable doubt as to his conviction.
In this case, Investigator Daphne Stiles testified the victim’s medical records did not have mention she suffered any injuries. (R.R. Vol. 8, p. 96). She also stated
that based on her 27 years of experience in law enforcement, more times than not,
there are not injuries and she has rarely seen one with injury that you can detect.
*11 (R.R. Vol. 8, p. 97). Based on this, the lack of injury did not concern Mrs. Stiles.
(R.R. Vol. 8, p. 97).
Kristy Link from the Texas DPS Crime Lab testified that analysis was performed of the sexual assault kit and buccal swabs from Bennie Johnson. (R.R.
Vol. 8, p. 125). Mrs. Link testified that a comparison of the two DNA profiles
developed for both the victim and the Appellant revealed that the epithelial cell
fraction was consistent with a mixture from the victim and Bennie Johnson. (R.R.
Vol. 8, p. 131). The sperm cell fraction was consistent with a mixture from Bennie
Johnson, the victim, and an unknown individual. (R.R. Vol. 8, p. 131). The
Appellant could not be excluded as the contributor of the major component of the
profile. (R.R. Vol. 8, p. 131).
The victim testified that on June 26, 2012 she had left a party and a friend’s apartment and was walking down Robison Road. (R.R. Vol. 8, p 143-44). A man
in a black SUV offered her a ride and she recognized him so she accepted the ride.
(R.R. Vol. 8, p. 144). The man stated he needed to make a stop before taking the
victim on to her destination. (R.R. Vol. 8, p. 147). He then pulled into a lot, pulled
out a gun, put it to her head, and demanded oral sex. (R.R. Vol. 8, p. 147). She
jumped out of the truck, but the man chased and caught her, then threw her onto
the ground. (R.R. Vol. 8, p. 148). At this point he held the gun to her head and she
was in fear of death. (R.R. Vol. 8, p. 149). The man then sexually assaulted the
victim as she layed on the ground. (R.R. Vol. 8, p. 149).
A few days after the attack, the victim was shown a line-up and she identified the man who had sexually assaulted her (R.R. Vol. 8, p. 158). The victim
also made an in-court identification of the Appellant as the man who had attacked
her. (R.R. Vol. 8, p. 158).
The victim also testified that the morning of the attack she had sexual intercourse with her fiancé, Michael. (R.R. Vol. 8, p. 158).
A rational jury could find from the testimony given that the Appellant committed the offense of aggravated sexual assault.
C. Conclusion
Viewing the evidence in a light most favorable to the verdict, this court can find that a rational jury could have found beyond a reasonable doubt the Appellant
intentionally or knowingly causes the penetration of the anus or sexual organ of
another person by any means without that person’s consent, and by acts or words,
places the victim in fear that death, serious bodily injury, or kidnapping will
imminently inflicted upon any persons or, by acts or words occurring in the
presence of the victim, threatens to cause the death, serious bodily injury, or
kidnapping of any person.
For these reasons, Appellant’s first point of error should be overruled. *13 Reply to Point of Error Two & Three The Appellant did not receive ineffective assistance of counsel In points of error number two and three, Appellant argues his trial attorney rendered ineffective assistance of counsel because he pursued a trial strategy that
allowed for the introduction of extraneous offenses to be introduced and for failing
to investigate and further test DNA evidence. However, the Appellant has failed to
show that counsels’ performance was deficient and that he was prejudiced by his
defense counsels alleged deficiencies.
Argument and Authorities
A. Standard of Review
To establish ineffective assistance of counsel, pursuant to the two-prong standard set out in Strickland v. Washington , Appellant must demonstrate that
counsel’s performance “fell below an objective standard of reasonableness” and
that he was prejudiced as a result. [9] A claim of ineffective assistance of counsel
must be firmly rooted in the record, with the record itself affirmatively
demonstrating the alleged ineffectiveness. [10] Failure to make the required showing
*14 of either deficient performance or sufficient prejudice defeats an ineffectiveness
claim. [11]
B. Application of Law to Facts
Appellant argues that his trial counsel’s performance was deficient because it consisted of a trial strategy which allowed for the introduction of extraneous
offenses at trial. “When facing a silent record as to defense counsel’s strategy, the
court will not speculate as to defense counsel’s tactics or guess what the reasons
might be for taking or not taking certain actions.” [12]
During opening statements, the defense informed the jury that the Appellant’s defense would be that the victim consented to the sexual activity. (R.R.
Vol. 8, p. 16). The trial court informed defense counsel that his cross examination
of Investigator Stiles could open the door to the extraneous offenses where other
women claimed they were sexually assaulted by the Appellant. (R.R. Vol. 8, p.
139). The defense indicated they knew of the possibility, but that the Appellant
was still going to take the witness stand and testify that the sex act with the victim
was consensual. (R.R. Vol. 8, p. 139). Prior to taking the witness stand, the
Appellant was admonished of his 5 th Amendment rights:
THE COURT: So you understand you do not have to testify unless you wish to?
*15 DEFENDANT: Yes, sir.
THE COURT: Let me ask you think: Are you going to be – do you wish to testify of your own free will and accord?
DEFENDANT: Yes, sir.
THE COURT: Let me ask this, John: What’s been your advice to the defendant in this case as to whether or not he should testify or not?
DEFENSE COUNSEL: Your Honor, with the defense, you know, Bennie’s position throughout this whole case is that this was a consensual act, and
I’ve told him, well if it’s a consensual act, you’re going to have to communicate
that to the jury. It would either be through his statement to the police or looking
them in eye in the courtroom and giving the nature of his defense. My advise to
him is that if he wants to present that defense, the only plausible way to do it is
through his testimony here in court; is that correct, Bennie?
DEFENDANT: Yes, sir.
COURT: Bennie, is that pretty well what he’s told you?
DEFENDANT: Yes, sir.
…
COURT: Let me do this, while we’re outside the presence of the jury.
This was something we mentioned earlier before we brought the jury back. The
jury is out now, and, again, John, I’m sure y’all have discussed the fact that by him
testifying to the, I guess, alleged consensual aspects of this, it could open the door
for the other offense to come in. I can’t say that with any certainty, but looks to the
Court like that’s what could happen.
DEFENSE COUNSEL: Judge, we are aware of the potential of the other women under the pseudonyms of … Dymond Harris and Ginger Zwick could be
potential witnesses testifying that Bennie had allegedly raped them prior to this
occurrence, and we are aware that this is out there.
(R.R. Vol. 8, p. 170).
Every indication in the record shows that the Appellant was putting for the defense of consent and was aware of what the possible repercussions would be of
asserting that defense. With the addition of the DNA evidence during trial, the
defense was extremely limited in the defensive strategies it would use. The
Appellant has failed to show that his trial counsel’s strategy was not a reasonable
trial strategy.
As for the failure to ‘investigate the alternative DNA’, the Appellant has failed to show that such failure constitutes deficient performance. The fact that the
victim testified she had consensual intercourse with her fiancé the morning of the
assault accounts for the unknown contributor in the DNA analysis.
Because the record lacks any indication of Appellant’s trial counsel’s strategy as to the DNA evidence, it cannot be found that the representation
rendered was deficient.
In addition, the Appellant has failed to sustain his burden of proof for an ineffective assistance of counsel claim in showing, by a preponderance of the
evidence, that this failure prejudiced his defense. To establish prejudice, “a
defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” [13]
Strickland places the burden on the defendant, not the State, to show a reasonable probability that the result would have been different, but for counsel’s
deficient performance. [14] For an ineffective assistance of counsel claim, Appellant
must “affirmatively prove prejudice.” [15]
Given the state of the evidence before the jury, this Court can conclude that Appellant was not prejudiced by counsel’s defensive strategies.
C. Conclusion
Appellant has failed to meet either prong of the Strickland test to support a claim of ineffective assistance of counsel. The record reasonably supports a
conclusion that defense counsel’s performance was not deficient. Therefore,
*18 counsels’ performance did not fall below an objective standard of reasonableness.
Appellant has also failed to affirmatively show that his trial counsels’ alleged error
caused prejudice.
For these reasons, Appellant’s second and third points of error should be overruled.
Prayer for Relief
WHEREFORE, PREMISES CONSIDERED , there being legal and
competent evidence sufficient to justify the conviction and punishment assessed in
this case and no reversible error appearing in the record of the trial of the case, the
State of Texas respectfully prays that this Honorable Court affirm the judgment
and sentence of the trial court below.
Respectfully Submitted: Jerry D. Rochelle Criminal District Attorney Bowie County, Texas 601 Main Street Texarkana, Texas 75501 Phone: (903) 735-4800 Fax: (903) 735-4819 __/s/Lauren N. Sutton____________ By: Lauren N. Sutton Assistant District Attorney 601 Main Street Texarkana, Texas 75501 Phone: (903) 735-4800 Fax: (903) 735-4819 Attorneys for the State *20 Certificate of Compliance
I, Lauren N. Sutton, certify that, pursuant to Rule 9 of the Texas Rules of Appellate Procedure, Appellee’s Brief contains 30,78 words, exclusive of the
caption, identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of issues presented,
statement of jurisdiction, statement of procedural history, signature, proof of
service, certification, certificate of compliance, and appendix.
__/s/Lauren N. Sutton__________________ Lauren N. Sutton *21 Certificate of Service
I, Lauren N. Sutton, certify that I have served a true and correct copy of the foregoing Brief for the State upon Mr. Derric S. McFarland, Attorney for
Appellant, on this the 21st day of September, 2015.
__/s/Lauren N. Sutton___________ Lauren N. Sutton
[1] 443 U.S. 307, 319 (1979).
[2] Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
[3] Williams v. State , 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
[4] Clayton , 235 S.W.3d at 778.
[5] Jackson , 443 U.S. at 318-19.
[6] Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
[7] Malik v. State , 953 S.W.2d at 240.
[8] Tex. Penal Code § 22.021
[9] Strickland v. Washington , 466 U.S. 668, 687-88 (1984).
[10] Lopez v. State , 343 S.W.3d 137, 142-43 (Tex. Crim. App. 2011)
[11] Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
[12] Smith v. State , 84 S.W.3d 38, 42 (Tex. App.—Texarkana 2002, no pet.).
[13] Strickland v. Washington, 466 U.S. 668 (1984).
[14] Wong v. Belmontes , 130 S Ct. 383, 386 (2009)(citing Strickland , 466 U.S. at 694).
[15] Strickland , 466 U.S. at 693.