PD-0141-15 February 6, 2015 PDR No.
in The Court of Criminal Appeals of Texas
CLIFFTON JAVON JOHNSON, Appellant
v.
THE STATE OF TEXAS, Appellee.
On Appellant's Petition for Discretionary Review From the Fourteenth Court of Appeals, Appeal No. 14-14-00053-CR, On Appeal from the 268th District Court of Fort Bend County Texas, Cause No. 13-DCR-063125.
PETITION FOR DISCRETIONARY REVIEW FOR APPELLANT, CLIFFTON JAVON JOHNSON
Oral Argument Requested
Cary M. Faden 77 Sugar Creek Center Blvd., Suite 230 Sugar Land, Texas 77478 Telephone: (281) 491-6182 Texas Bar No. 06768725 E-MAIL: caryfaden@aol.com
Attorney for Appellant Table of Contents
Index ofAuthorities iv
Statement Regarding Oral Argument
Statement of the Case
Procedural History of the Case
Ground for Discretionary Review 2
GROUND ONE
THE FOURTEENTH COURT OF APPEALS ERRED IN REFUSING TO CONDUCT A HARM ANALYSIS AND TO APPLY THE LAW IN AFFIRMING APPELLANT'S CONVICTION.
Reasons to Grant Review in Support of Ground for Review 2
Review is appropriate, under Tex. R. App. P. 66.3(a), because the Court Of Appeals has rendered a decision, which is in conflict with the decisions of another court of appeals on the same matter, namely:
Ground One: Brooks v. State, 323 S.W.3d 893,894-95 (Tex. Crim. App. 2010) ; Burden v. State, 55 S.W.3d 608, 612 (Tex. Crim. App. 2001); Garcia v. State, 367 S.W.3d 683, 688 (Tex. Crim. App. 2012); Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781.; Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989).
Review is proper, under Tex. R. App. P. 66.3 (b), because the Court Of Appeals has rendered a decision, which encompasses an important question of state law, which has not been, but should be, settled by this Court.
Review is important, under Tex. R. App. P. 66.3(1), because the Court
ii Of Appeals has so far departed from the accepted and usual course of judicial proceedings, as to call for an exercise of this Court's power of supervision.
Argument And Authorities In Support Of Ground For Review One 3
Prayer for Relief 8
Certificate of Service 10
Appendix-Fourteenth Court Of Appeals Opinion
iii INDEX OF AUTHORITIES
CASES:
Brooks v. State, 323 S.W.3d 893,894-95 (Tex. Crim. App. 2010) ii,2,7
Burden v. State, 55 S.W.3d 608, 612 (Tex. Crim. App. 2001) ii,2,7
Garcia v. State, 367 S.W.3d 683, 688 (Tex. Crim. App. 2012) ii,2,4
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 ii,2,7
Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989) ii,2,4
STATUES, CODES, AND RULES:
Tex. Penal Code, section 1.07(8) 3
Tex. Penal Code, section 22.04(a) 6
Tex. R. App. P. 66.3(a) ii,2,3
Tex. R. App. P. 66.3(b) ii,2,3
Tex. R. App. P. 66.3(0 ii,2,3
Tex. R. App. P. 68.2 vi
Tex. R. App. P. 68.4(c)
iv STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Tex. R. App. P. 68.4(c), counsel respectfully requests oral
argument. Oral argument would be helpful in the event this petition for discretionary
review is granted. This appeal involves questions of law, questions of fact, public
policy and procedure which cannot be adequately addressed, analyzed and evaluated
through written communication alone. Oral argument is essential to emphasize the
unique characteristics of these questions and to address the unforeseeable exigencies
arising during the Court's consideration of this appeal.
On May 6, 2013, Cliffton Javon Johnson, Appellant, was indicted in cause
number 13-DCR-063125, for the third degree felony offense of injury to the elderly.
(1 CR at 13). The offense was alleged to have occurred on or about April 21, 2013.
(1 CR at 13). On December 10, 2013, Appellant pleaded not guilty to the indictment.
(3 RR at 6). After a jury trial, the Court assessed Appellant's punishment at
confinement in the Texas Department of Criminal Justice-Institutional Division for
a period of three (3) years, with no fine. (5 CR at 11). On January 7, 2014, Appellant
timely filed his notice of appeal. (1 CR at 50).
On December 23, 2014, the Fourteenth Court of Appeals affirmed Appellant's conviction. Johnson v. State, No. 14-14-00053-CR, slip op. at 1-4 (Tex. App.—
Houston [14th Dist.], December 23, 2014, pet. pending). On December 31, 2014,
Appellant timely filed his motion for rehearing. The Fourteenth Court ❑f Appeals
overruled and denied Appellant's Motion For Rehearing on January 13, 2015. On
February 1, 2015, Appellant timely filed this Petition For Discretionary Review with
the Clerk of the Court Of Criminal Appeals. TEX. R. APP. P. 4.1 and 68.2.
vi PDR No.
On Appellant's Petition for Discretionary Review From the Fourteenth Court of Appeals, Appeal No. 14-14-00053-CR, On Appeal from the 268th District Court of Fort Bend County Texas, Cause No. 13-DCR-063125.
PETITION FOR DISCRETIONARY REVIEW FOR APPELLANT, CLIFFTON JAVON JOHNSON
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW Appellant, Cliffton Javon Johnson, by and through his attorney
of record, Cary M. Faden, and files this petition for discretionary review of the
December 23, 2014, decision of the Fourteenth Court of Appeals of Texas in Johnson
1 v. State, No. 14-14-00053-CR, slip op. at 1-4 ( rex. App. — Houston [14th Dist.],
December 23, 2014, pet. pending); and would respectfully show the Court following:
GROUNDS FOR REVIEW
THE FOURTEENTH COURT OF APPEALS ERRED IN REFUSING TO CONDUCT A HARM ANALYSIS AND TO APPLY THE LAW IN AFFIRMING APPELLANT'S CONVICTION.
REASONS TO GRANT REVIEW IN SUPPORT OF GROUNDS FOR REVIEW
Review is appropriate, under Tex. R. App. P. 66.3(a), because the Court Of Appeals has rendered a decision, which is in conflict with the decisions of another court of appeals on the same matter, namely:
Ground One: Brooks v. State, 323 S.W.3d 893,894-95 (Tex. Crim. App. 2010) ; Burden v. State, 55 S.W.3d 608, 612 (Tex. Crim. App. 2001); Garcia v. State, 367 S.W.3d 683, 688 (Tex. Crim. App. 2012); Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781.; Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989).
Review is proper, under Tex. R. App. P. 66.3 (b), because the Court Of Appeals has rendered a decision, which encompasses an important question of state law, which has not been, but should be, settled by this Court.
Review is important, under TEX. R. APP. P. 66.3(f), because the Court Of Appeals has so far departed from the accepted and usual course of judicial proceedings, as to call for an exercise of this Court's power of supervision.
2 ARGUMENT AND AUTHORITIES IN SUPPORT OF GROUND FOR REVIEW ONE
In its December 23, 2014, opinion, the Fourteenth Court Of Appeals affirmed
Appellant's conviction in finding the evidence sufficient, but did not conduct any
meaningful analysis, did not apply the law, and refused to conduct a harm analysis.
This Court should review this issue, and review is appropriate, under Tex. R.
App. P. 66.3(a), because the Court Of Appeals has rendered a decision, which is in
conflict with the decisions of another court of appeals on the same matter; and review
is appropriate, under Tex. R. App. P. 66.3 (d), because the Court Of Appeals appears
to have misconstrued a statute, rule, regulation, or ordinance; and review is important,
under Tex. R. App. P. 66.3(f), because the Court Of Appeals has so far departed from
the accepted and usual course of judicial proceedings, as to call for an exercise of this
Court's power of supervision.
The Fourteenth Court Of Appeals stated in its opinion: A person commits the
offense of injury to the elderly if he intentionally, knowingly, recklessly, or with
criminal negligence, engages in conduct that causes to an elderly individual: (1)
serious bodily injury; (2) serious physical or mental deficiency or impairment; (3)
disfigurement or deformity; or (4) bodily injury. Bodily injury is defined as, "physical
pain, illness, or any impairment of physical condition." Tex. Penal Code § 1.07(8).
3 This definition is broadly construed to include "even relatively minor physical
contacts so long as they constitute more than mere offensive touching." Lane v. State,
763 S.W.2d 785, 786 (Tex. Crim. App. 1989)." A fact finder may infer that a victim
actually felt or suffered physical pain because people of common intelligence
understand pain and some of the natural causes of it." Garcia v. State, 367 S.W.3d
683, 688 (Tex. Crim. App. 2012).
The record reflects testimony from the victim and two witnesses that appellant
hit Johnson so hard that Johnson fell to the ground. Johnson testified that his left arm
and hip were injured. The State admitted a photograph ofJohnson showing the injury
to his face. Based on Johnson's testimony, and the jury's view of the photographs
showing Johnson's injury, a rational juror could have concluded that Johnson
suffered bodily injury as a result of appellant striking him. Therefore, we conclude
a rational jury could have found beyond a reasonable doubt that appellant committed
the offense of injury to the elderly. The Fourteenth Court overruled appellant's sole
issue.
It is Appellant's contention that the State called Charlie Johnson, Jr., the
alleged victim in the case, who testified on April 21, 2013, his grandson, Cliffton
Johnson, was living with him at that time. His date of birth is June the 19, 1931, or
82 years old. On April 21, 2013, at some point, Appellant got into an altercation with
4 Patrick his friend. Charlie went outside to see what was going on. He saw Appellant
hit Patrick. He talked to him in the driveway. Appellant told him, "You -- you -- he
said, "You know it's something that -- you ain't did what God told you to do." That's
when he hauled off and hit him. He hit him over the right eye. He fell on his left side.
He scarred up his left arm. He said it hurt. (3 RR at 14-29). Cross examination, he
stated on this day he had been drinking, when his grandson arrived, he was inside the
house. He went outside when he heard the noise, he tried to talk to him, and he got
hit. He did not get medical attention after he was injured. He admitted he did push
Cliffton that day. (3 RR at 29-38).
Appellant testified at trial and said on April 21, he was drinking that day. An
altercation ensued, at some point, his grandfather got hit. He did not intentionally hit
his grandfather. Appellant and his uncle was tussling. His grandfather jumped in
between them and he fell on the ground and hit his head, at that time when he fell,
Appellant was the one that tried to pick him up, and Appellant was punched in the
face by his uncle. (4 RR at 5-14). Cross examination, on April 21, 2013, Appellant
said they attacked him because he was accused of hitting his grandfather when his
grandfather stepped between Appellant and his Uncle Keith. He fell within the tussle,
the scuffle between them. Charlie threw his hands up right in between us. He got right
in between both of them. Appellant said it could have been reckless for him to
5 actually, if he hit his grandfather, it could have been reckless for him to hit his
grandfather. Appellant said, "Yes, yes, it could have been so." (4 RR at 14-43).
Appellant testified at the punishment phase that he accidentally or recklessly
struck his grandfather. The elements of injury to an elderly individual do not require
an intentional or knowing act. See TEX. PEN. CODE ANN. § 22.04(a). Further,
either bodily injury or serious bodily injury satisfies the injury element of the offense.
See id. Appellant challenges on appeal the sufficiency of the evidence to sustain the
element of bodily injury to Charles Johnson. Appellant argues that the evidence is
legally insufficient to support a guilty verdict.
As briefed in a legal sufficiency argument, this Court will view the evidence
in a light most favorable to the State, and therefore do not evaluate the credibility of
witnesses. In this cause, the record shows clearly that Charlie Johnson's testimony
regarding Appellant, the testimony can only be described as confusing, they both
claimed to be unsure of specificity. There was no medical evidence of an assault
presented, there was no physical evidence presented at trial. The jury heard both
Charlie's and Appellant's inconsistent statements. An examination of the evidence
in the light most favorable to the verdict, no rational jury could have found the
elements of the offenses beyond a reasonable doubt.
This Court can not conclude by legally sufficient evidence in this cause that
6 Appellant intentionally and knowingly caused bodily injury to Charles Johnson, a
person over 65 years of age, hereinafter called complainant, by striking him.
The mere fact that the central witness Charlie Johnson's testimony was
confused, inconsistent, with limited memory. Appellant suggests that the State's
investigation was wholly based upon the witnesses lack of credibility. Thus, the
evidence was legally insufficient to find Appellant guilty of injury to an elderly
individual. Brooks v. State, 323 S.W.3d 893,894-95 (Tex. Crim. App. 2010) (plurality
op.); id. at 926 (Cochran, J., concurring). Jackson v. Virginia, 443 U.S. 307, 99 S. Ct.
2781. Burden v. State, 55 S.W.3d 608, 612 (Tex. Crim. App. 2001). Thus, with the
view of all of the evidence in the light most favorable to the verdict to determine
whether the fact finder was rationally justified in finding guilt beyond a reasonable
doubt, the evidence was legally insufficient to find Appellant guilty. Brooks v. State,
323 S.W.3d 893, 894 (Tex. Crim. App.2010) (plurality opinion); id. at 926 (Cochran,
J., concurring). Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781. Burden v. State, 55
S.W.3d 608, 612 (Tex. Crim. App. 2001). This Court should grant this Petition For
Discretionary Review.
Appellant is in dispute with the Fourteenth Court's opinion issued and requests
that this Court consider this Petition For Discretionary Review. Appellant urges this
Petition based upon the fact that this Court attempts to address the issues as briefed.
7 The Court Of Appeals lack of cited case law has departed from the accepted and usual
course of judicial proceedings and the case law cited by Appellant in his Petition For
Discretionary Review, as to call for an exercise of this Court's power of supervision.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant, Cliffton Javon
Johnson, prays that the Court grant the Petition For Discretionary Review for
Appellant, order briefing on this cause, and set it for submission at the earliest
possible date. Moreover, upon submission and review of the appellate record and the
briefs and arguments of counsel, the Court issue an opinion resolving this conflict so
that the bench and bar of this state will know how to address and dispose of similar
issues in the future.
Respectfully submitted,
/s/CARY M. FADEN Cary M. Faden SBN 06768725 Counsel for Appellant 77 Sugar Creek Center Blvd., Suite 230 Sugar Land, Texas 77478 Telephone: (281) 491-6182 Facsimile: (281) 491-0049 E-Mail: earyfaden@aol.com
Attorney For Appellant
8 CERTIFICATE OF COMPLIANCE, T.R.A.P., RULE 9.4(3)
In accordance with TEX. R. APP. P. 9.4(3), I Cary M. Faden, certify that this
is a computer generated document and I state that the number of words in this
document is approximately 2,630 words. I am relying on the word count of the
computer program used to prepare this document.
/s/CARY M. FADEN Cary M. Faden
CERTIFICATE OF SERVICE
In accordance with Tex. R. App. P. 9.5, I, Cary M. Faden, certify that a true and
correct copy of the foregoing Petition For Discretionary Review has been served, by
U.S. Mail, upon Cliffton Javon Johnson, to the attorney for the State Of Texas, John
F. Healey, Jr., District Attorney, Appellate Division, 301 Jackson Street, Room 101,
Richmond, Texas 77469, to the State Of Texas Prosecuting Attorney, Lisa C.
McMinn, P. O. Box 13046, Captiol Station, Austin, Texas 78711 on this the 1st day
of February, 2015.
9 December 23, 2014
JUDGMENT
IFourterlitil (Court of Appeab3 CLIFFTON JAVON JOHNSON, Appellant
NO. 14-14-00053-CR V.
THE STATE OF TEXAS, Appellee
This cause was heard on the transcript of the record of the court below. Having considered the record, this Court holds that there was no error in the judgment. The Court orders the judgment AFFIRMED. We further order appellant pay all costs expended in the appeal. We further order this decision certified below for observance. Affirmed and Memorandum Opinion filed December 23, 2014.
In The
Nuurteent11 (Court of Apprills
NO. 14-14-00053-CR
On Appeal from the 268th District Court Fort Bend County, Texas Trial Court Cause No. 13-DCR-063125
MEMORANDUM OPINION
Appellant Cliffton Javon Johnson appeals his conviction for injury to the elderly. In a single issue, appellant argues the evidence is insufficient to sustain the element of bodily injury to the complainant. We affirm.
BACKGROUND
Appellant's grandfather, Charlie Johnson, testified that he is 82 years old. On the date of the offense Johnson was visiting his daughter's house when appellant and a friend named Patrick Smith came to Johnson's daughter's house.' Johnson saw appellant hit Smith, and attempted to break up the fight by talking with appellant. Appellant and Johnson exchanged cross words, and appellant hit Johnson so hard that Johnson fell to the ground injuring his left hip, left arm, and cutting his face near his eye. Johnson's daughter also attempted to intervene, but appellant assaulted her.
Smith testified that appellant was taking PCP on the day of the offense. Smith saw appellant hit Johnson and knock him down, and also saw appellant hit his mother. Appellant's mother also testified to the assault on Johnson.
Appellant testified that he had not taken PCP on the day of the offense, but had drunk two 24-ounce beers. Appellant said he did not intentionally hit Johnson, but that Johnson jumped into an altercation between appellant, Smith, and appellant's "Uncle Keith."
One of Johnson's granddaughters testified that she had asked Johnson to sign an affidavit stating that appellant had not intentionally assaulted him. The granddaughter wrote out the language, which read, "I do not believe my grandson, Clifton Jovan [sic] Johnson, intentionally hit me during an altercation at my daughter's home in April 2013. My grandson is not a harmful person, and I am certain he did not strike me knowingly and intentionally." Johnson testified that he remembered signing an affidavit, but the document he signed did not contain that language.
ANALYSIS
In a single issue appellant challenges the sufficiency of the evidence to support his conviction. Specifically, he challenges the sufficiency of the evidence
1 Johnson's daughter is appellant's mother.
2 to sustain the element of bodily injury to Johnson.
When reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and determine, based on that evidence and any reasonable inferences therefrom, whether a rational jury could have found the elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). In making this review, an appellate court considers all evidence in the record, whether it was admissible or inadmissible. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013).
We may not substitute our judgment for that of the jury by reevaluating the weight and credibility of the evidence. Brooks v. State, 323 S.W.3d 893, 900 (Tex. Crim. App. 2010). We defer to the jury's responsibility to resolve any conflicts in the evidence fairly, weigh the evidence, and draw reasonable inferences. Id. The jury alone decides whether to believe eyewitness testimony, and it resolves any conflicts in the evidence. Id. In conducting a sufficiency review, we do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision. Young v. State, 358 S.W.3d 790, 801 (Tex. App.—Houston [14th Dist.] 2012, pet. ref d).
A person commits the offense of injury to the elderly if he intentionally, knowingly, recklessly, or with criminal negligence, engages in conduct that causes to an elderly individual: (1) serious bodily injury; (2) serious physical or mental deficiency or impairment; (3) disfigurement or deformity; or (4) bodily injury. Bodily injury is defined as, "physical pain, illness, or any impairment of physical condition." Tex. Penal Code § 1.07(8). This definition is broadly construed to include "even relatively minor physical contacts so long as they constitute more than mere offensive touching." Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim.
3 App. 1989). "A fact finder may infer that a victim actually felt or suffered physical pain because people of common intelligence understand pain and some of the natural causes of it." Garcia v. State, 367 S.W.3d 683, 688 (Tex. Crim. App. 2012).
The record reflects testimony from the victim and two witnesses that appellant hit Johnson so hard that Johnson fell to the ground. Johnson testified that his left arm and hip were injured. The State admitted a photograph of Johnson showing the injury to his face. Based on Johnson's testimony, and the jury's view of the photographs showing Johnson's injury, a rational juror could have concluded that Johnson suffered bodily injury as a result of appellant striking him. Therefore, we conclude a rational jury could have found beyond a reasonable doubt that appellant committed the offense of injury to the elderly. We overrule appellant's sole issue.
The trial court's judgment is affirmed.
/s/ Ken Wise Justice
Panel consists of Justices Christopher, Donovan, and Wise. Do Not Publish — Tex. R. App. P. 47.2(b).