Cody Johnson v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 25, 2021
• Docket: 10-19-00364-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-19-00364-CR

CODY JOHNSON, Appellant v.

THE STATE OF TEXAS, Appellee

From the 18th District Court Johnson County, Texas Trial Court No. DC-F201800186

MEMORANDUM OPINION

In Counts 1 and 2 the jury convicted Cody Johnson of the offense of aggravated

sexual assault of a child and assessed punishment at 40 years confinement for each count.

In Count 3, Count 5, and Count 7, the jury convicted Johnson of the offense of indecency

with a child and assessed punishment at 10 years confinement. In Count 6 the jury

convicted Johnson of the offense of indecency with a child and assessed punishment at

20 years confinement. We affirm. BACKGROUND FACTS

There is no challenge to the sufficiency of the evidence to support Johnson’s

conviction for aggravated sexual assault of a child or indecency with a child. Johnson

lived with his girlfriend, Jessica, and her two children. N.S. is Jessica’s daughter, and

S.S. is a friend of N.S. S.S. frequently visited and stayed the night with N.S. at the

residence where Johnson also lived. S.S. told her father and her father’s girlfriend that

Johnson sexually abused her. S.S.’s father told Jessica about the allegations, and Jessica

asked N.S. if Johnson had also sexually abused her. N.S. then told Jessica that Johnson

had sexually abused her. Both girls were interviewed at the Johnson County Children’s

Advocacy Center, and Johnson was subsequently indicted for the offenses of aggravated

sexual assault of a child and indecency with a child. Counts 1, 2, 3, and 5 involve N.S.,

while Counts 6 and 7 involve S.S.

ASSESSMENT OF COURT COSTS

In the first issue, Johnson argues that the evidence is insufficient to support the

trial court’s assessment of attorney’s fees. The State concedes that the evidence is

insufficient to support the assessment of fees for court-appointed counsel. The parties

request that we modify the trial court’s judgment by deleting the trial court’s assessment

of attorney’s fees.

We note that the judgment in this case does not contain an erroneous assessment

of attorney’s fees. In the judgment, the trial court noted “See Bill of Costs” in the section

for court costs. The bill of costs shows a fee of $1500.00 for court-appointed attorney’s

fees. We are authorized on direct appeal to order a modification of a bill of costs

Johnson v. State Page 2 independent of finding an error in the trial court’s judgment. See TEX. CODE CRIM. PROC.

arts. 103.001, 103.003, 103.006, and 103.008; Dulin v. State, 620 S.W.3d 129 (Tex. Crim. App.

2021); Bryant v. State, No. 10-18-00352-CR, 2021 LEXIS 6000 (Tex. App. — Waco July 28,

2021, no pet. h). Accordingly, we modify the certified bill of cost in this case by striking

the assessment of $1500.00 in attorney’s fees. Because the assessment of attorney’s fees is

not included in the amount of court cost assessed in the judgment, the trial court’s

judgment does not need to be modified based upon our disposition of this issue.

ADMISSION OF TESTIMONY

In the second issue, Johnson argues that the trial court abused its discretion in

allowing the State to bolster the expected testimony of its own complaining witnesses.

We review a trial court's admission or exclusion of evidence for an abuse of discretion.

Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court abuses its

discretion if it acts arbitrarily or unreasonably, without reference to any guiding rules or

principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). When

considering a trial court's decision to admit or exclude evidence, we will not reverse the

trial court's ruling unless it falls outside the "zone of reasonable disagreement." Id. at 391;

see Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003).

The State called Kacie Hand as its first witness. Hand was previously employed

by the Johnson County Children’s Advocacy Center as a forensic interviewer. Hand

testified that she interviewed both N.S. and S.S. Hand interviewed the girls on the same

day, but the interviews were conducted separately. The State asked whether there was

Johnson v. State Page 3 any indication N.S. and S.S. tried to “streamline or match their stories.” Johnson objected

that the response would be irrelevant and that question “calls for her to be an expert that

she is not qualified to be.” The trial court allowed Hand to testify about her perception.

The State asked again if there was any attempt by the girls to match their stories. Johnson

objected that the State was asking Hand to comment on the credibility of the girls. The

trial court overruled the objection. The State then asked again if there was any attempt

by the girls to match their stories. Hand responded, “not that I saw.”

Under a general issue about improper bolstering, Johnson specifically argues that

the State’s question solicited Hand’s opinion regarding the girls’ credibility and was a

clear act of improper bolstering in violation of Rules 401, 403, 608, and 702 of the Texas

Rules of Evidence 1. Bolstering the credibility of a witness has traditionally been the

attempt to use prior consistent statements by the same witness to enhance the witness's

credibility after that witness’s credibility has been attacked. Newland v. State, 363 S.W.3d

205, 207 (Tex. App. —Waco 2011, pet. ref’d). Bolstering has been defined as any evidence

the sole purpose of which is to convince the factfinder that a particular witness or source

of evidence is worthy of credit, without substantively contributing to make the existence

of a fact that is of consequence to the determination of the action more or less probable

than it would be without the evidence. Rivas v. State, 275 S.W.3d 880, 886 (Tex. Crim. App.

2009) (quoting Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993)). In other words,

1 There is some question whether the objections at trial would have informed the trial court that improper bolstering of a witness testimony was the basis of the objection. Nonetheless we will address the merits of the argument.

Johnson v. State Page 4 bolstering is the introduction of evidence that the witness is believable without that

evidence being relevant to the proceeding. Newland v. State, 363 S.W.3d at 207. Thus,

bolstering, generally, is prohibited. Id.

Hand’s observations on whether the girls attempted to match their stories is not

evidence that the girls are believable. It is only Hand’s perception that she did not notice

any attempt by the girls to tell the same story. Hand did not testify that the girls were

telling the truth, nor did she testify that the girls told consistent statements. We do not

find that Hand’s perception of whether the girls attempted to make their stories

consistent to be improper bolstering. The trial court did not abuse its discretion in

allowing the testimony. We overrule the second issue.

PRIOR INVESTIGATION EVIDENCE

In the third, fourth, and fifth issues on appeal, Johnson argues that the trial court

erred in allowing into evidence a prior sexual assault investigation against him. The trial

court held a hearing outside the presence of the jury to determine the admissibility of

statements made by Johnson during his interview with Detective Wesley Mackey of the

Cleburne Police Department. Detective Mackey asked Johnson if he knew why he was

asked to come to the police station. Johnson responded that he believed it was concerning

sexual assault allegations made by a girl named Callie in 2015. Johnson argued at the

hearing that the evidence was inadmissible because it was not relevant and because the

probative value was greatly outweighed by the prejudicial effect. The trial court found

the evidence was relevant, but excluded it under Rule 403 of the Texas Rules of Evidence.

Johnson v. State Page 5 The video of the interview was played before the jury, but the statement about the 2015

prior investigation was excluded.

Johnson made the decision to testify in his own defense. During cross-

examination, Johnson testified that someone from Child Protective Services told him he

should leave the house and to be expecting a call from a detective. Johnson said the

person from CPS did not tell him about the allegations by N.S. and S.S. Johnson said that

he later went to the interview with Detective Mackey. The State asked, “So when you

show up at the police station, do you tell Detective Mackey that you think you’re there to

see something about [N.S.]?” Johnson responded, “Yes.” The State then asked “You did.

The first thing you told - -“ Johnson’s trial counsel objected to the question, and the trial

court held a hearing outside the presence of the jury.

The trial court upheld its ruling that the evidence was inadmissible under Rule

403. After taking a break, the trial court then reconsidered the issue of the admissibility

of the 2015 prior investigation. The trial court found that there had been a lot of

discussion about a variety of complaints and that “at this point I’m not thinking that my

earlier ruling on 403 still applies at this point that we are in the evidence that the jury has

heard. So I’m going to withdraw that ruling. I’m going to allow it.”

The State then asked Johnson if he told Detective Mackey he thought he was there

because of an allegation made in 2015. Johnson further testified on cross-examination

that he thought the allegation involved N.S. and that he did not tell Detective Mackey

another girl’s name. The State then played before the jury the videotape of the interview

Johnson v. State Page 6 where Johnson said he believed he was there because of a prior 2015 investigation

involving a girl named Callie.

Johnson first argues that the trial court allowed the State, through its own

misconduct, to open the door on cross-examination for the admission of the statement.

Johnson contends that it was prosecutorial misconduct for the State to question Johnson

on the prior investigation in violation of the trial court’s ruling. Prosecutorial misconduct

rises to a due-process violation when it is so significant that it deprives a defendant of a

fair trial. Clark v. State, 365 S.W.3d 333, 338 (Tex. Crim. App. 2012).

To preserve error for appellate review, the Texas Rules of Appellate Procedure

require that the record show that the objection "stated the grounds for the ruling that the

complaining party sought from the trial court with sufficient specificity to make the trial

court aware of the complaint, unless the specific grounds were apparent from the

context." TEX. R. APP. P. 33.1(a)(1)(A). The point of error on appeal must comport with

the objection made at trial. Clark v. State, 365 S.W.3d at 339. Therefore, if a party fails to

properly object to constitutional errors at trial, these errors can be forfeited. Id. The trial

court should know when it is being asked to make a constitutional ruling because

constitutional error is subject to a much stricter harm analysis on appeal. See TEX. R. APP.

P. 44.2(a), (b); Clark v. State, 365 S.W.3d at 340. The court needs to be presented with and

have the chance to rule on the specific constitutional objection because it can have such

heavy implications on appeal. Id. We do not find that the State’s question rose to the level

of raising or informing the trial court that Johnson was contending the State had engaged

Johnson v. State Page 7 in prosecutorial misconduct. Johnson did not preserve any complaint that he was denied

due process as a result of prosecutorial misconduct. We overrule the third issue.

Johnson next argues that the trial court erred in reversing its previous ruling on

the admissibility of the statement about the prior 2015 investigation. Although the Texas

Rules of Evidence are intentionally slanted toward the inclusion of all relevant evidence,

Rule 403 gives the trial court considerable discretion to exclude evidence when it appears

to that individual judge, in the context of that particular trial, to be insufficiently

probative when measured against the countervailing factors specified in the rule.

Winegarner v. State, 235 S.W.3d 787, 791 (Tex. Crim. App. 2007); Amspacher v. State, 311

S.W.3d 564, 572 (Tex. App. —Waco 2009, no pet.).

In a Rule 403 analysis, a trial court must balance (1) the inherent probative force of

the proffered item of evidence along with (2) the proponent's need for that evidence

against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any

tendency of the evidence to confuse or distract the jury from the main issues, (5) any

tendency of the evidence to be given undue weight by a jury that has not been equipped

to evaluate the probative force of the evidence, and (6) the likelihood that presentation of

the evidence will consume an inordinate amount of time or merely repeat evidence

already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006);

Amspacher v. State, 311 S.W.3d at 572.

Johnson does not challenge the trial court’s determination that the evidence is

relevant. The trial court noted that the evidence was originally excluded under Rule 403

because of the concern for confusion of the jury, but that concern no longer existed

Johnson v. State Page 8 because considerable time had been spent on previous allegations. Rule 403 gives the

trial court considerable latitude to assess the courtroom dynamics, to judge the tone and

tenor of the witness's testimony and its impact upon the jury, and to conduct the

necessary balancing. Amspacher v. State, 311 S.W.3d at 572. The trial court may revisit an

evidentiary ruling any time prior to closing. See Black v. State, 362 S.W.3d 626, 633-635

(Tex. Crim. App. 2012). The record shows that the trial court initially conducted the

necessary balancing and found the evidence to be inadmissible. The trial court then

reassessed the ruling based upon subsequent testimony that had been presented to the

jury without objection concerning previous allegations. We find that the trial court did

not abuse its discretion in revisiting its prior ruling and allowing the testimony under

Rule 403. We overrule the fourth issue.

Johnson finally argues that the trial court’s reversal of its previous ruling under

Rule 403 deprived him of his constitutional right to remain silent and his right to effective

assistance of counsel. Johnson testified at trial that he would not have chosen to testify if

he knew the trial court would allow the previously excluded portion of the video to be

played to the jury, and that he would be subject to cross-examination regarding the

statement. Johnson argues that he relied on the trial court’s ruling in deciding his

Constitutional right to remain silent and not testify.

Johnson testified and denied the allegations. Johnson testified that Jessica had the

girls fabricate the allegations because she wanted Johnson to leave her house. The defense

also presented testimony that N.S. and S.S. were not credible. Johnson was aware of the

risks of taking the stand and that he would be subject to cross-examination. Because the

Johnson v. State Page 9 trial court may revisit evidentiary rulings, we cannot find that the trial court’s decision to

allow admission of the evidence of the prior investigation violated his right to remain

silent and right to effective assistance of counsel. We overrule the fifth issue.

CONCLUSION

We modify the certified bill of cost by striking the assessment of $1500.00 in

attorney’s fees. We affirm the trial court’s judgment.

TOM GRAY Chief Justice Before Chief Justice Gray, Justice Johnson, and Justice Wright 2 Affirmed Opinion delivered and filed August 25, 2021 Do not publish [CRPM]

2 The Honorable Jim R. Wright, Senior Chief Justice (Retired) of the Eleventh Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003.

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