Ex Parte Ray Louis Johnson, Jr.

Opinion

ACCEPTED 06-14-00214-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 2/24/2015 11:55:56 AM DEBBIE AUTREY CLERK

No. 06-14-00214-CR ____________________________________________ RECEIVED IN 6th COURT OF APPEALS TEXARKANA, TEXAS IN THE 2/24/2015 11:55:56 AM DEBBIE AUTREY SIXTH COURT OF APPEALS Clerk AT TEXARKANA, TEXAS

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EX PARTE: RAY LOUIS JOHNSON, JR.

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APPEAL FROM TH THE 8 DISTRICT COURT OF HOPKINS COUNTY, TEXAS TRIAL COURT NOS. 0317178, 0317179 & 0317180 ____________________________________________

APPLICANT’S BRIEF ____________________________________________

Wade A. Forsman P.O. Box 918 Sulphur Springs, TX 75483-0918 903.689.4144, f. 903.689.7001 wade@forsmanlaw.com

Attorney for Applicant Ray Louis Johnson, Jr.

ORAL ARGUMENT REQUESTED

Applicant’s Brief IDENTITY OF PARTIES AND COUNSEL

Pursuant to Texas Rule of Appellate Procedure 38(a), the following is a list of all

parties to the trial court’s order made the basis of this applicant, as well as the names

and addresses of all trial and appellate counsel:

Applicant Applicant’s appellate counsel Ray Louis Johnson, Jr. Wade A. Forsman P.O. Box 918 Sulphur Springs, TX 75483-0918 903.689.4144 telephone 903.689.7001 facsimile wade@forsmanlaw.com

Applicant’s trial counsel Roland M. “Ron” Ferguson, Jr. 1804 Woodbridge Drive Sulphur Springs, TX 75482 903.335.8412 telephone

The State of Texas State’s trial & appellate counsel Hopkins County District Attorney ATTN: Will Ramsay1 114 Main Street Sulphur Springs, TX 75482 903.885.0641 telephone 903.885.0640 facsimile willramsay@suddenlinkmail.com

1 The District Attorney on October 31, 2003 was Mr. Frank Long. He is now in private practice Applicant’s Brief Page i TABLE OF CONTENTS

Identity of Parties and Counsel ……………………………………………………. i

Table of Contents ……………………………………………………………….. iii

Index of Authorities ………………………………………………………………. v

Statement of the Case …………………………………………………………….. 1

Issue Presented …………………………………………………………………... 2

POINT OF ERROR NO. 1: The trial court abused its discretion by failing to conduct a full evidentiary hearing on Applicant’s assertion that his guilty plea on a first-degree felony was not made competently because he was under the influence of a controlled substance pursuant to instructions from a health care provider.

Statement of Facts ……………………………………………………………….. 3

Standard of Review……...…………………………………………………………7

Argument …………………………………………………………………............. 8

I. Ex Parte Whistance – A Case with Similar Facts………………………….. 8

II. Ex Parte Whistance -- The Trial Court There Responds Differently Than the Trial Court Here …………………………………………………..9

Prayer ……………………………………………………………………………..11

Certificate of Word Count ………………………………………………………..12

Certificate of Service……………………………………………………………...12

Applicant’s Appendix – List of Documents …………………………………….. 13

Applicant’s Brief Page ii INDEX OF AUTHORITIES

Cases

Avery v. State, 359 S.W.3d 230 (Tex. Crim. App. 2013) …………………………………….3

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985), cert. denied, 476 U.S. 1159 (1985) …………………………………………11

Ex Parte Resendiz, 06-14-00170-CR, 2015 Tex. App. LEXIS 191 (Tex. App. – Texarkana Jan. 13, 2015) ……..7, 8

Ex parte Villanueva, 252 S.W.3d 391 (Tex. Crim. App. 2008) ……………………………………8

Ex Parte Whistance, No. 02-07-280-CR, 2007 Tex. App. LEXIS 7937 (Tex. App. – Fort Worth, Oct. 4, 2007), pet. discretionary review refused, 2008 Tex. Crim. App. LEXIS 349 (Tex. Crim. App. March 5, 2008) ……8, 9

Forrest v. State, 805 S.W.2d 462 (Tex. Crim. App. 1991) …………………………………...11

State v. Wilson, 324 S.W.3d 595 (Tex. Crim. App. 2010) ………………………………….11

Statutes

TEX. CODE CRIM. P. art. 11.072 ……………………………………………………9

Court Rules

Tex. R. App. P. 9.4(i)(3) ………………………………………………………… 12

Applicant’s Brief Page iii TEX. R. APP. P. 38(a) ……………………………………………………………… i

Applicant’s Brief Page iv No. 06-14-00214-CR ____________________________________________

IN THE SIXTH COURT OF APPEALS AT TEXARKANA, TEXAS

____________________________________________

EX PARTE: RAY LOUIS JOHNSON, JR.

____________________________________________

APPEAL FROM TH THE 62 DISTRICT COURT OF HOPKINS COUNTY, TEXAS TRIAL COURT NOS. 0317178, 0317179 & 0317180 ____________________________________________

APPLICANT’S BRIEF ____________________________________________

STATEMENT OF THE CASE

The Applicant, Ray Louis Johnson, Jr., appeals the order titled Order Denying Relief Pursuant to Section 11.072, TCCP, and Issuance of Findings of Fact and Conclusions of Law, issued by the trial court, the Honorable Will Biard presiding, on November 17, 2014 (“Order”).

Applicant’s Brief Page 1 ISSUES PRESENTED

POINT OF ERROR NO. 1: The trial court abused its discretion by failing to conduct a full evidentiary hearing on Applicant’s assertion that his guilty plea on a first-degree felony was not made competently because he was under the influence of a controlled substance pursuant to instructions from a health care provider.

Applicant’s Brief Page 2 STATEMENT OF FACTS

***The following facts are taken from the file of the trial court***

On October 30, 2003, the Applicant, Ray Louis Johnson, Jr. (“Johnson”), was

seen by Dr. Richard T. Rehnquist, DDS, in Mount Vernon, Texas (App. 16). Johnson

did not do this on his own. That is because Johnson was in the custody of the Hopkins

County Sheriff’s Office (“HCSO”) at the time (App. 22), and it was HCSO that took

Johnson to see Dr. Rehnquist.

Dr. Rehnquist performed oral surgery on Johnson (App. 16, 16, 22). After the

surgery, Dr. Rehnquist prescribed hydrocodone for Johnson (App. 15, 22).

Hydrocodone is a Schedule II controlled substance.2 Johnson also prescribed

promethazine (25 mgs)(App. 22).3

The following morning, HCSO brought Johnson to the courtroom in Sulphur

Springs of the 8th Judicial District Court of Hopkins County, Texas, the Honorable

Robert Newsom presiding. A bench trial was set for that day and time, i.e., the

morning of October 31, 2003 (App. 22), and Johnson was the defendant, for he had

been charged with aggravated sexual assault of a child, a first-degree felony.

2 See Avery v. State, 359 S.W.3d 230, 234 (Tex. Crim. App. 2013). 3 Promethazine is not a controlled substance in and of itself. Applicant’s Brief Page 3 Johnson was still under the influence of medication, including hydrocodone,

on the morning of October 31, 2003 when he entered the courtroom (App. 23). That

is because in compliance with Dr. Rehnquist’s instructions, Johnson was ingesting

a 10 mg pill of hydrocodone every four hours, and he was taking promethazine (25

mgs) once per day. For that reason Johnson ingested a 10 mg pill of hydrocodone

thirty (30) minutes before the commencement of trial (App. 22).

Judge Newsom noticed Johnson’s impaired condition, and he asked Johnson’s

trial counsel, Mr. Ron Ferguson, if Johnson was “alright” (App. 23, 24). In response

to this query, Johnson interrupted and personally informed the trial judge of his oral

surgery the day before (App. 23, 24).

It was on this same day, i.e., October 31, 2003, when Johnson pleaded guilty

to aggravated sexual assault of a child (App. 04, 05). Following Johnson’s plea of

guilty, the trial court sentenced Johnson to ten years of deferred probation (App. 06).

Johnson did not successfully complete his deferred probation. On February

21, 2005, and in response to the first amended motion to proceed with adjudication,4

the trial court adjudicated Johnson guilty of the offense of sexual assault of a child

(App. 09, 10). The trial court then sentenced Johnson to confinement for 40 years

with the Texas Department of Criminal Justice (“TDCJ”)(App. 09, 10).

4 The State filed this on January 24, 2005. Applicant’s Brief Page 4 Since that time Johnson has repeatedly challenged the validity of the guilty

plea he entered on October 31, 2003. On April 5, 2007, Johnson wrote the following

to the trial court:

When I signed for the initial plea . . . I was under the influence of pain medication that prevented voluntary and knowing intelligence [sic] of the pains and penaltis [sic] . . . thereof. . . . (App. 12)

On July 2, 2010, Johnson filed pro se what he titled a “motion to withdraw guilty

plea” in which he wrote the following:

When the guilty plea was obtained by the State on October 31, 2003, [I] was unable to properly consider the consequences and serious nature of the proceedings, as [I] was under the influence of hydrocodone . . . [I] had been prescribed hydrocodone as treatment for oral surgeon [sic] by Dr. Rehnquist. (App. 15, 16).

Finally, on May 15, 2014, Johnson filed the present application for a writ of habeas

corpus, which he has brought pursuant to article 11.072 of the Texas Code of

Criminal Procedure (App. 21). In that document, as with his prior documents,

Johnson avers that he did not make his guilty plea on October 31, 2003 competently

because of the hydrocodone he had ingested, for a legitimate medical purpose, in

compliance with Dr. Rehnquist’s orders. In that application Johnson also avers that

Ferguson, his trial attorney, provided him with ineffective assistance of counsel.

Applicant’s Brief Page 5 Johnson’s article 11.072 application found its way back to the trial court –

specifically, the 62nd Judicial District Court, the Honorable Will Biard presiding.5

On November 17, 2014, Judge Biard entered an order titled Order Denying Relief

Pursuant to Section 11.072, TCCP, and Issuance of Findings of Fact and

Conclusions of Law (“Order”)(App. 31). In the Order Judge Biard made the

following findings of fact:

1. On October 31, 2003, [Johnson’s] trial counsel [i.e., Ferguson] affirmatively represented that [Johnson] was competent and understood the proceedings (Written Plea Admonishments).

2. The trial judge, Honorable Robert Newsom, was best suited to determine [Johnson’s] competency at the time his plea was entered on October 31, 2003.

3. On October 31, 2003, at the time [Johnson’s] plea was entered and accepted, the trial judge, Honorable Robert Newsom, made a finding of fact that Applicant was competent. (Written Plea Admonishments).

4. On February 21, 2005, [Johnson] pled [t]rue to the allegations contained in the State’s Motion to Proceed with Adjudication. Again on February 21, 2005, [Johnson] confessed that at the time of his plea on October 31, 2003, he was the same person that pled guilty, that he understood the consequences of his plea, and that he read and understood the terms and conditions of his probation.

5 The current judge for the 8th Judicial District Court is now the Honorable Eddie Northcutt. Johnson’s application was transferred to the 62nd Judicial District Court from the 8th Judicial District because prior to taking the bench Judge Northcutt had represented Johnson, albeit briefly, in connection with a motion to proceed. Applicant’s Brief Page 6 Judge Biard then made the following conclusion of law:

1. Applicant was competent at the time his plea was entered on October 31, 2003.

2. Applicant fully understood the consequences of his plea and placement on deferred adjudication.

3. Applicant did not raise the issue of competency at the time he pled true to the State’s Motion to Proceed with Adjudication on February 21, 2005.

4. As this Court has determined that Applicant was competent at the time of his plea, the Court further finds that Applicant’s trial counsel was not ineffective.

For the Court’s convenience, a true and correct copy of the Order is attached. (App.

31). According to Order, Judge Biard entered the foregoing findings and conclusions

“[a]fter reviewing the files[.]”

STANDARD OF REVIEW

The standard of review is abuse of discretion. Ex Parte Resendiz, 06-14-

00170-CR, 2015 Tex. App. LEXIS 191, *2 (Tex. App. – Texarkana Jan. 13, 2015)

(citing cases).

Applicant’s Brief Page 7 ARGUMENT POINT OF ERROR NO. 1: The trial court abused its discretion by failing to conduct a full evidentiary hearing on Applicant’s assertion that his guilty plea on a first-degree felony was not made competently because he was under the influence of a controlled substance pursuant to instructions from a health care provider.

Johnson attacks the validity of the guilty plea he made on October 31, 2003

while he was still recovering from oral surgery. Such an attack is permitted by Ex

parte Villanueva, 252 S.W.3d 391, 395 (Tex. Crim. App. 2008), followed in Ex Parte

Resendiz, 06-14-00170-CR, 2015 Tex. App. LEXIS 191, *3 (Tex. App. – Texarkana

Jan. 13, 2015) (citing cases). Johnson’s subsequent adjudication and resultant

incarceration in February 2005 are not valid because when Johnson entered his guilty

plea on October 31, 2003 he was still under the influence of hydrocodone and

promethazine, which he was taking in compliance with the orders of a health care

provider – namely, Dr. Rehnquist.

I. Ex Parte Whistance – A Case with Similar Facts

The Court of Appeals in Fort Worth considered a case with similar

background facts. See Ex Parte Whistance, No. 02-07-280-CR, 2007 Tex. App.

LEXIS 7937 (Tex. App. – Fort Worth, Oct. 4, 2007), pet. discretionary review

refused, 2008 Tex. Crim. App. LEXIS 349 (Tex. Crim. App. March 5, 2008). In that

Applicant’s Brief Page 8 case the defendant, Ms. Brandi Nicole Whistance, pleaded guilty to a felony,6 for

which she was placed on deferred probation. Id. at *1. A little over a year later, the

State filed a motion to adjudicate, after which Whistance ultimately filed an

application for a writ of habeas corpus pursuant to article 11.072 of the Texas Code

of Criminal Procedure. Id. at **1-2.

In her application, Whistance averred that she had been under the influence of

a controlled substance, methamphetamines, when she pled guilty, and that "but for

[her] being under the influence of methamphetamines . . . [she] would never have

pled guilty." Id. at *3. Indeed, the Fort Worth Court of Appeals noted that Whistance

had tested positive for that substance on the very same day when she pleaded guilty.

Id. at *3.

II. Ex Parte Whistance -- The Trial Court There Responds Differently Than the Trial Court Here

The trial court in Whistance did more than review Whistance’s plea papers.

Instead, the trial court in Whistance responded to Whistance’s application under

article 11.072 in the following three ways.

First, the trial court in Whistance reviewed two affidavits – one from the judge

who heard Whistance’s plea, and another from Whistance’s attorney at the time

6 The felony was forgery of a financial instrument. Applicant’s Brief Page 9 when Whistance pleaded guilty. Id. at *4. The Court in Whistance also considered

expert evidence offered by the State showing that a positive urinalysis for

methamphetamine is not necessarily the same as being under the influence of

methamphetamine. Id. at **8-9. Finally, the trial court in Whistance considered

evidence offered by the State which showed that at the time of Whistance’s plea no

one in the courtroom had witnessed any behavior by Whistance that would have

indicated she was under the influence of methamphetamine. Id. at *9.

The trial court in the present case did none of these things. It neither

sought nor reviewed any evidence, affidavit or live, from Judge Newsom. It neither

sought nor reviewed any evidence, affidavit or live, from Ferguson. It neither sought

nor reviewed any dental records or live testimony from Dr. Rehnquist. Unlike

Whistance, it neither sought nor reviewed any evidence from experts – this case

about the degree of impairment, if any, that normally results from having oral

surgery 24 hours earlier, or about the degree of impairment that normally results

from taking pain medication like a 10 mg pill of hydrocodone every four hours.

There is no evidence the trial court here ever bothered to seek, much less

review, the jail records from the HCSO to see if Johnson had indeed been prescribed

10 mg of hydrocodone from a health care provider like Dr. Rehnquist. Certainly, the

Applicant’s Brief Page 10 trial court in the present case made no effort to bench warrant Johnson and obtain

evidence from him directly.

Instead, the trial court in this case states in the Order what it did do, and it is

not much. According to the Order, the trial court “review[ed] the files.” Nothing

else.

That is not enough. Relying on written plea admonishments, without more,

does not constitute an inquiry that justifies entering any of the findings of fact and

conclusions of law contained in the Order. Indeed, to enter such findings and

conclusions solely on this basis of “reviewing the files” constitutes an abuse of

discretion. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.

1985) (The test for determining whether a trial court abuses its discretion is whether

it acted without reference to any guiding rules or principles), cert. denied, 476 U.S.

1159 (1985), cited in State v. Wilson, 324 S.W.3d 595, 597, fn. no. 4 (Tex. Crim.

App. 2010), and Forrest v. State, 805 S.W.2d 462, 464 (Tex. Crim. App. 1991).

PRAYER

WHEREFORE, Applicant, Ray Louis Johnson, Jr. asks this Court to reverse

the order of the trial court, titled Order Denying Relief Pursuant to Section 11.072,

TCCP, and Issuance of Findings of Fact and Conclusions of Law, dated November

17, 2014, and remand this matter back to the trial court with instructions that it

Applicant’s Brief Page 11 conduct a full evidentiary hearing on Applicant’s assertion that his guilty plea on

October 31, 2003 was not made competently because he was under the influence of

a controlled substance pursuant to instructions from a health care provider, and/or

for such other and further relief to which Johnson may establish himself entitled.

Respectfully submitted,

By: __/s/ Wade A. Forsman_ Wade A. Forsman State Bar No. 07264257 P.O. Box 918 Sulphur Springs, TX 75483-0918 903.689.4144 East Texas 972.499.4004 Dallas/Fort Worth 903.689.7001 Facsimile wade@forsmanlaw.com

Attorney for Applicant Ray Louis Johnson, Jr.

CERTIFICATE OF WORD COUNT

Pursuant to Tex. R. App. P. 9.4(i)(3), this document contains 2,805 words.

__/s/ Wade A. Forsman_ Wade A. Forsman

CERTIFICATE OF SERVICE

This is to certify that on February 24, 2015, I served a true and correct copy of the above and foregoing Applicant’s Brief by email on Will Ramsay, District Attorney, at 114 Main Street, Sulphur Springs, Texas 75482.

__/s/ Wade A. Forsman_ Wade A. Forsman Applicant’s Brief Page 12 Nos. 06-14-00214-CR ____________________________________________

IN THE SIXTH COURT OF APPEALS AT TEXARKANA, TEXAS

____________________________________________

EX PARTE: RAY LOUIS JOHNSON, JR.

____________________________________________

APPEAL FROM TH THE 8 DISTRICT COURT OF HOPKINS COUNTY, TEXAS TRIAL COURT NOS. 03178, 03179 & 03180 ____________________________________________

APPLICANT’S APPENDIX ____________________________________________

LIST OF DOCUMENTS

***Below are certified copies of the following documents***

Johnson’s plea papers, dated October 31, 2003…….………………………… Ex. A

Trial Court adjudicates Johnson on February 21, 2005 ……………………… Ex. B

Johnson’s letter to Trial Court, filed April 5, 2007 …………………………...Ex. C

Applicant’s Brief Page 13 Johnson’s “Motion to Withdraw,” filed July 2, 2010………………………….Ex. D

Johnson’s Application for Writ of Habeas Corpus pursuant to art. 11.072 of the Texas Code of Criminal Procedure, dated May 14, 2014 ………………………………………………….……….. Ex. E

Order from the Trial Court, titled Order Denying Relief Pursuant to Section 11.072, TCCP, and Issuance of Findings of Fact and Conclusions of Law, filed Nov. 17, 2014 ………………………………………………………….....Ex. F

Applicant’s Brief Page 14 App. 01 App. 02 App. 03 App. 04 App. 05 App. 06 App. 07 App. 08 App. 09 App. 10 App. 11 App. 12 App. 13 App. 14 App. 15 App. 16 App. 17 App. 18 App. 19 App. 20 App. 21 App. 22 App. 23 App. 24 App. 25 App. 26 App. 27 App. 28 App. 29 App. 30 App. 31 App. 32