In The
Court of Appeals
Ninth District of Texas at Beaumont
________________ NO. 09-20-00175-CR ________________
JOHNNIE EDISON CARTER, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 15-22215 ________________________________________________________________________
MEMORANDUM OPINION
Appellant, Johnnie Edison Carter, 1 appealed the trial court’s order revoking
his deferred adjudication probation. In his appeal, he alleges multiple violations of
his constitutional rights, particularly the privilege against self-incrimination and the
1 The record reflects that Johnnie Edison Carter is also known as Johnnie Edison Carter Jr. 1 right to confront witnesses against him. U.S. Const. amends. V, VI, and XIV.
Finding no reversible error, we affirm the judgment of the trial court.
Background
A. Procedural History
In 2015, Appellant entered into a plea bargain agreement regarding a charge
of aggravated assault with a deadly weapon, a second-degree felony. See Tex. Penal
Code Ann. § 22.02(a)(2). Pursuant to the terms of that plea agreement, Appellant
was placed on deferred adjudication for ten years, and was ordered to obey certain
conditions: pay certain fines and fees, regularly report to his Community Supervision
Officer, perform community service, complete an anger management program, and
commit no offense against the laws of this or any other state.2 In 2018, it came to
the attention of the State that Appellant had not met his obligation as to four of his
conditions of unadjudicated probation, and the State moved to revoke Appellant’s
probation on those grounds. The State later amended its motion to include two
additional grounds related to criminal charges of aggravated sexual assault of a child.
See Tex. Penal Code Ann. § 22.021(1)(B).
Appellant pleaded “true” to revocation grounds alleging that he had failed to
pay fees, to report to his probation officer, and had failed to provide verification of
2 Appellant’s Deferred Adjudication Order included twenty-six conditions, but only the five listed conditions are relevant to this appeal. 2 his community service, but he pleaded “untrue” to the grounds alleging that he had
committed another criminal offense. The trial court found sufficient evidence of four
violations of the conditions of his probation to support revocation of his probation,
including the new criminal charges, and sentenced Appellant to a term of twenty
years in the Texas Department of Criminal Justice, Institutional Division. In his
appeal, Appellant asserts multiple violations of his constitutional rights during the
trial court proceedings. He also attacks the fees assessed, noting that one fee was
declared unconstitutional and amendments to Texas law that affect others.
B. Hearing on the Motion to Adjudicate
1. Testimony of Tina Vaughn3
Tina, the alleged victim of the new criminal charges brought against
Appellant, testified that at the time of the alleged assaults, in late December of 2017,
she was thirteen years old, and Appellant was her mother’s boyfriend. She stated
that she and Appellant were at her mother’s home while her mother was at work,
and the two of them watched a movie while lying on her mother’s bed. Appellant
later asked her explicit questions about her sexual experience and preferences and
3 Because the Texas constitution grants crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process[,]” we use a fictitious name to identify the individual identified in the record as the victim of the alleged crime. See Tex. Const. art. I, § 30(a)(1).
3 took her on a trip to a store. When they returned from that trip, Appellant told Tina
to put on a dress, and she complied with his directive. Appellant then had Tina
perform oral sex on him, and she recalled that he ejaculated in her mouth and on the
dress she was wearing. Tina then went into the bathroom intending to shower, but
when she exited the bathroom to look for her phone, Appellant asked her to come
back and then had vaginal intercourse with her.
When Tina returned to her father’s home, she told him that Appellant had
assaulted her, and her father took her to the hospital for a sexual assault examination.
Tina then gave an interview at the Garth House, where she related the same
information that she provided in court. She also confirmed the information that she
had provided to the sexual assault nurse examiner. Tina’s testimony at the hearing
was consistent with that information.
Tina acknowledged having engaged in unprotected sexual intercourse with a
male acquaintance within a short time of Appellant’s assault of her. She also
confirmed her mental health struggles, including suicide attempts, but stated that she
has received counseling and has improved because of that counseling.
Appellant lodged no objections to Tina’s testimony.
4 2. Testimony of Appellant
Appellant confirmed that he was dating Tina’s mother in December of 2017.
For that reason, Appellant was acquainted with Tina but did not know her well
because she was living with her father during that time frame. He denied the
allegations regarding his alleged sexual contact with Tina but was unable to explain
why his semen was found on the front of Tina’s dress. He did, however, indicate that
the house was messy, and that clothes were everywhere, including in the bedroom
where he and Tina’s mother shared a bed.
3. Testimony of Rachel Thomas
Thomas, a sexual assault nurse examiner (“SANE”), testified as to her
educational and professional qualifications and certifications. She described the
purpose of a SANE examination, noting that its primary purpose is to provide
medical treatment for the patient.
Thomas outlined the procedure for conducting a SANE examination, both
generally and with specific reference to the SANE examination she performed on
Tina in December of 2017. She confirmed the history of the assault that Tina gave
at the time of the examination and noted that although Tina showed no signs of
having sustained a physical injury due to that assault, the absence of injury is
common.
5 Because Thomas testified before Tina testified, Appellant objected to
Thomas’ testimony to the extent that it might include hearsay statements of Tina that
would violate Appellant’s constitutional right to confront a witness against him. The
trial court overruled the objection.
4. Testimony of Jessica Lake
Lake was a forensic scientist employed at the Texas Department of Public
Safety Crime Laboratory in Houston. She described her own educational and
professional qualifications, as well as the accreditation of the laboratory.
She outlined the process of DNA testing, noting that samples are identified
with a unique case number and a bar code that is scanned to track the evidence
movement within the laboratory and maintain the integrity of its chain of custody.
As an additional security measure, the laboratory keeps evidence in a vault that must
be accessed by two employees, each with a unique identification number.
Lake authenticated the relevant items of evidence and stated that she prepared
samples for DNA testing. She identified item 2.1C as the fabric sample cut from the
front of Tina’s dress.
Appellant objected to the admission of Lake’s report on the basis that it was
hearsay, which the trial court overruled.
6 5. Testimony of Monnie Michalic
Like Lake, Michalic was employed as a forensic scientist at the crime
laboratory at the time of the scientific analyses in question in this case. She described
her educational and professional qualifications and expressed her agreement with
Lake’s testimony about DNA. Her involvement in this case consisted of examining
and comparing the computer-generated profiles and writing a report; she did not,
however, perform any part of the laboratory procedure that produced the DNA
profiles. Michalic concluded that item 2.1C contained epithelial (skin) DNA from
Tina, from Appellant, and from an unknown individual, and contained sperm DNA
from Appellant and an unknown individual. She stated that there was only an
infinitesimal chance that Appellant did not contribute to the DNA mixture identified
on this item of evidence but acknowledged the possibility that evidence tested for
DNA might contain some leftover skin cells from another individual.
Appellant objected to Michalic’s report on the basis that it was hearsay, and
the trial court overruled his objection.
6. Testimony of Charles Duchamp
Detective Duchamp, of the Beaumont Police Department, described the usual
procedure for investigating a report of child sexual abuse. In connection with his
assignment to investigate Tina’s reported assault, he interviewed Appellant, who
denied having assaulted Tina in any manner.
7 Duchamp did not read Appellant his rights before questioning him but stated
that he was not required to do so because Appellant was not in custody at the time
of the interview. Duchamp recalled that Appellant voluntarily came to the police
station, gave a statement, and left the station afterward.
Appellant objected to Duchamp’s testimony based on § 38.22 of the Texas
Code of Criminal Procedure, the implication being that Appellant was not warned
of his privilege against self-incrimination before being subjected to allegedly
custodial interrogation. See Miranda v. Arizona, 384 U.S. 436 (1966); Tex. Code
Crim. Proc. Ann. art. 38.22. Appellant further objected to the line of questioning
inquiring into the logic of Appellant’s semen being found on Tina’s dress if, as
Appellant alleged, he never touched her, and the trial court overruled his objection.
7. Testimony of Ashley Barlow
Appellant’s probation officer testified regarding Appellant’s payment
arrearages and his failure to report to the probation department according to his
assigned schedule. In addition, Barlow noted that as of the time of the hearing,
Appellant had completed only 142 of the 800 hours of community service required
of him.
Standard of Review
“[T]o revoke probation (whether it be regular probation or deferred
adjudication), the State need prove the violation of a condition of probation only by
8 a preponderance of the evidence.” Hacker v. State, 389 S.W.3d 860, 864-65 (Tex.
Crim. App. 2013). In the context of probation revocation, ‘“a preponderance of the
evidence’ means ‘that greater weight of the credible evidence which would create a
reasonable belief that the defendant has violated a condition of his probation.”’ Id.
at 865. To decide whether the State met this evidentiary standard, we examine the
evidence in the light most favorable to the trial court’s order. Garrett v. State, 619
S.W.2d 172, 174 (Tex. Crim. App. 1981).
In determining whether the allegations in the motion to revoke probation are
true, the trial court is the sole trier of fact, the judge of the credibility of the witnesses,
and the arbiter of the weight to be given to the testimony. Taylor v. State, 604 S.W.2d
175, 179 (Tex. Crim. App. 1980); Trevino v. State, 218 S.W.3d 234, 240 (Tex.
App.—Houston [14th Dist.] 2007, no pet.). It is within the province of the trial court,
as factfinder, to reconcile conflicts or contradictions in the evidence, and we do not
reverse the trial court if the conviction finds support in the evidence. See Cooks v.
State, 844 S.W.2d 697, 708 (Tex. Crim. App. 1992); Shah v. State, 403 S.W.3d 29,
34 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). The State needs to establish
only one sufficient ground for revocation by a preponderance of the evidence. See
Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009); Moore v. State, 605
S.W.2d 924, 926 (Tex. Crim. App. 1980).
9 Analysis
A. Privilege Against Self-Incrimination
In his first and third issues, Appellant complains that a police officer
questioned him without advising him of his constitutional rights, and that this
questioning therefore violated his privilege against self-incrimination. Miranda, 384
U.S. 436; Tex. Code Crim. Proc. Ann. art. 38.22. Although Appellant concedes that
these warnings are required only when an accused person is in custody, he argues
that his interview should be considered custodial interrogation because it took place
in a police station and because Appellant was the target of the investigation into
Tina’s allegations of sexual assault. Appellant has not, however, cited any
controlling authority to support his interpretation of the law and its application to the
facts before us. Tex. R. App. P. 38.1(i). To the contrary, both Texas and federal
courts have extensively examined the question of custody for Miranda purposes, and
have determined that a suspect is not in custody simply because the questioning
occurs in a police station. Oregon v. Mathiason, 429 U.S. 492 (1977); see also Meek
v. State, 790 S.W.2d 618, 622 (Tex. Crim. App. 1990) (questioning took place at a
fire station). The fact that an individual may be the prime suspect in a case is likewise
irrelevant to the application of Miranda because officers’ subjective opinions have
no bearing on the custody question. Stansbury v. California, 511 U.S. 318, 324
(1994). Instead, the “relevant inquiry is how a reasonable [individual] in the
10 suspect’s position would have understood his situation.” Berkemer v. McCarty, 468
U.S. 420, 442 (1984).
In the case at bar, Detective Duchamp testified that at the start of the interview,
he personally advised Appellant that he (Appellant) was free to leave at any time,
and that when the interview ended, Appellant left the police station. Appellant has
offered no evidence to contradict Duchamp’s characterization of the interview as
non-custodial; moreover, Appellant’s brief states that Duchamp “invited Appellant
into his office[.]” (emphasis added) Calling Duchamp’s action an invitation
underscores the non-custodial nature of the interview. The evidence contains no
indication that Appellant was handcuffed or that his “freedom of action [was]
curtailed to a ‘degree associated with formal arrest[,]”’ and we therefore conclude
that a reasonable person in Appellant’s situation would not have understood himself
to have been in police custody at the time he provided his statement. Berkemer, 468
U.S. at 440 (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam).
Even if Appellant were in custody at the time in question, the trial court’s
error, if any, in allowing Duchamp’s testimony would be harmless, because “very
similar evidence was admitted without objection.” Bleimeyer v. State, 616 S.W.3d
234, 256 (Tex. App.—Houston [14th Dist.] 2021, no pet.) (citations omitted). Not
only did Tina testify to the matters that Duchamp related, but Appellant testified in
conformity with Duchamp’s version of Appellant’s un-Mirandized interview.
11 Because Appellant failed to object to that very similar evidence, the trial court did
not commit reversible error in permitting Duchamp’s testimony.
Appellant’s Miranda issues are overruled.
B. Right to Confront Witnesses
Appellant’s second, fourth, fifth, and sixth issues address the alleged
deprivation of his constitutional right to confront the witnesses against him. In
particular, he claims that the trial court allowing the testimony of Duchamp and
Thomas violated this right because their testimony contained Tina’s hearsay
testimonial statements, in violation of Crawford v. Washington, 541 U.S. 36 (2004).
In making this argument, however, Appellant has overlooked the fact that Tina
testified to the same events that Duchamp and Thomas related. Because Tina’s
testimony was admitted without objection, and because it was “very similar” to the
arguably objectionable portions of Duchamp’s and Thomas’ testimony, any error in
the admission of their testimony is harmless. Bleimeyer, 616 S.W.3d 234 at 256.
Appellant also claimed that the admission of the laboratory report was
erroneous because it was hearsay, and because not all the laboratory technicians
contributing to it were available for cross-examination. At the hearing on the Motion
to Revoke Appellant’s Probation, Appellant objected to the laboratory report on the
sole ground that it was hearsay but did not further object to the report on the ground
that it violated his right to confront witnesses. Because a hearsay objection fails to
12 preserve error regarding the Confrontation Clause, and because a hearsay objection,
without additional specificity, “is insufficient to apprise the trial judge of a
defendant’s specific complaint[,]” we overrule this issue. See Williams v. State, No.
05-06-00797-CR, 2007 WL 914754, at *2 (Tex. App.—–Dallas March 28, 2007, no
pet.); Tex. R. App. P. 33.1(a)(1).
We further observe that Appellant did not object to Lake’s or Michalic’s
testimony, only their laboratory reports. The laboratory reports appear to duplicate
their testimony, and the trial court therefore did not err in admitting the reports.
Bleimeyer, 616 S.W.3d 234 at 253.
Accordingly, we overrule Appellant’s Confrontation Clause issues.
C. Legally Insufficient Evidence
Probation revocation allegations five and six reference Appellant’s sexual
contact with Tina; Appellant attacks the sufficiency of the evidence to sustain these
grounds on the basis that the scientific evidence is legally inadequate to identify him,
and on the additional basis that Tina’s testimony was fabricated. In a legal
sufficiency review, we evaluate the evidence in the light most favorable to the trial
court’s decision and will reverse the trial court only if no rational trier of fact could
have reached the same conclusion. Williams, 2007 WL 914754, at *3 (citations
omitted).
13 As for the identification of Appellant, Duchamp testified that he obtained a
sample of Appellant’s DNA and submitted it to the laboratory for testing. Lake and
Michalic also testified that their laboratory uses a unique case number and bar code
to identify evidence being tested, and that a sample of Appellant’s DNA was
provided for the purpose of testing it against DNA found on items of evidence.
Michalic further noted that although it was scientifically possible that the evidence
contained Appellant’s DNA from his epithelial cells only, and not from his semen,
that outcome was statistically improbable. Taken together, the testimony of
Duchamp, Lake, and Michalic would enable a rational factfinder to conclude by a
preponderance of the evidence that Appellant’s semen was found on the evidence
tested, a cutting from the fabric of Tina’s dress. Additionally, Appellant’s new
contention disputing the reliability of scientific testing methods was never presented
to the trial court, and this complaint therefore has not been preserved for our review.
Tex. R. App. P. 33.1(a)(1).
Finding legally sufficient evidence to support the trial court’s decision to
revoke Appellant’s probation, we overrule this issue.
D. Appellant’s 2015 Guilty Plea
In his seventh and eighth points, Appellant attacks the trial court’s disposition
of the offense of aggravated assault. Even though Appellant previously entered a
plea of “guilty” to that crime, Appellant now appears to be arguing that he had a
14 valid defense to the charge of aggravated assault, and that his attorney failed to
properly investigate evidence that might have substantiated his current claim of self-
defense. This argument was not presented to the trial court and may not be presented
for the first time on appeal. Tex. R. App. 33.1(a)(1). We therefore overrule these
issues.
E. Written Findings of Fact
In his ninth appellate issue, Appellant contends that this case should be
remanded to the trial court for resentencing, or to direct the trial court to make
written findings of fact regarding both the aggravated assault and the grounds for
revoking probation. Appellant further contends that the trial court erred in
determining that his “small pocket knife” was a deadly weapon. These complaints
were not presented to the trial court, and they therefore are not preserved for our
review. Tex. R. App. P. 33.1(a)(1).
In addition, Appellant has not shown that the trial court’s alleged error, if any,
was harmful to the outcome of his case, and therefore has not shown that reversal is
appropriate. Van Do v. State, 634 S.W.3d 883, 899 (Tex. Crim. App. 2021). Instead,
Appellant has offered a narrative that purports to substantiate his position and has
urged us to accept it as accurate. It was, however, the exclusive province of the trial
court to determine the facts, as shown by the exhibits and witness testimony; in
conformity with its responsibility as factfinder, the trial court found the relevant facts
15 adverse to Appellant, and we will not disturb those determinations absent an abuse
of discretion. Taylor, 604 S.W.3d at 179. Finding no abuse of discretion, we overrule
this issue.
F. Fee Assessments
In his tenth and final point, Appellant requests a refund in the amount of
$77.07 of certain fees charged, alleging that these fees are unconstitutional, and that
subsequent changes in Texas law would have resulted in lower fees being assessed
against him. Like many of Appellant’s preceding arguments, this argument was
never presented to the trial court, and Appellant therefore has waived his right to
present it on appeal. Tex. R. App. P. 33.1(a)(1). Appellant’s reliance on Bearden v.
Georgia is misplaced, as that case does not indicate that indigent defendants will not
be found to have waived their complaints of constitutional or other error. 461 U.S.
660 (1983). Instead, Bearden addresses the propriety of imprisoning an indigent
individual who is unable to pay a lawful fine yet is silent as to the necessity of
preserving error as a prerequisite to appeal. See generally id. Montalbo v. State is
likewise inapplicable to Appellant’s claim that he has not waived error. 885 S.W.2d
160 (Tex. Crim. App. 1994). Montalbo, unlike the case before us, addresses the
sufficiency of a notice of appeal; as neither party to this appeal has called upon us to
consider the sufficiency of Appellant’s notice, we will not do so. See generally id.
16 Although Appellant has raised a seemingly legitimate claim to partial
reimbursement under the rationale of Salinas v. State, Appellant failed to present
this claim to the trial court, and he therefore has waived his right to argue it on
appeal. 523 S.W.3d 103 (Tex. Crim. App. 2017); Tex. R. Civ. P. 33.1. Because an
argument of constitutional magnitude may by waived by failure to timely present it,
we overrule this issue. Beaty v. State, No. 03-16-00669-CR, 2017 WL 2928113, at
*2 (Tex. App.—Austin, July 7, 2017, no pet.) (mem. op., not designated for
publication).
Conclusion
As noted above, Appellant pleaded “true” to two of the pleaded grounds to
revoke his probation. Because a plea of “true” to any single ground will support a
decision to revoke probation, the trial court did not err in revoking Appellant’s
probation, finding him guilty of aggravated assault, and sentencing him to a twenty-
year prison term. Ross v. State, 523 S.W.2d 402, 403-04 (Tex. Crim. App. 1975).
Having overruled all of Appellant’s issues, we affirm the judgment of the
trial court.
AFFIRMED.
________________________________ CHARLES KREGER Justice
17 Submitted on January 31, 2022 Opinion Delivered June 8, 2022 Do Not Publish
Before Golemon, C.J., Kreger and Horton, JJ.