Johnson, Morris Landon Ii

Opinion

S%?-f5 PD - 0892-15 ORIGINAL No. 11-13-00174-CR

KfcUfcllWfcU M COURT OF CRIFWAL AFP^jm s IN THE TEXAS COURT UUUK' ur bK!Li" Xl " OF CRIMINAL APPEALS AUG 1? 2Q15 Morris Landon Johnson II Abe! Acosta, C\q& -Petitioner/Appellant- v.

The State of Texas -Respondent/Appellee-

PETITION FOR DESCRETIONARY REVIEW

From the 266th District Court, Erath County, Texas Trial Court Cause No. CR 13895

Appellate opinion handed down by the Eleventh District Court of Appeals in Eastland, Texas on June 5, 2015

*Motion for Rehearing not filed* *Oral Argument not requested*

FILED IN MORRIS LANDON JOHNSON II #1877943 COURT OF CRIMINAL "rrtALS APPEALS APPPELLANT, PRO SE AUG 19 2015 COFFIELD UNIT 2661 F. M. 2054 Abel Acosta, Clerk TENNESSEE COLONY, TX. 75884 IDENTITY OF THE PARTIES

Appellant/petitioner Morris Landon Johnson II

TDCJ# 01877943

C/oH. H. CoffieldUnit

2661 FM 2054

Tennessee Colony, TX 75884

Appellee The State of Texas

Appellant Counsel Russell King 13211 S. US HWY 377

Dublin, Texas 76446

Trial Counsel Andrew Ottoway PO Box 1697

Granbury, Texas 76048

States Trial and Appellate Counsel Alan Nash DA

Sterling Harmon ADA P O Box 30

Stephenville, Texas 76401 TABLE OF CONTENTS

Cover Sheet 1

Identity of Parties 2

Table of Contents 3

Index of Authorities 4

Statement of the Case 5

Statement of Procedural History 6

Grounds for Review 7

Reason for Review 7

Question for Review 7

Summary of Argument 8,9

Argument and Authorities 9

Prayer 12

Certificate of Service 12

Appendix 13

(Judgement and opinion from Eleventh Court of Appeals) Index of Authorities

Johnson v. State, 967 S.W. 2D 410,417 (Tex. Crim.APP.1998) PG# 10

Nealv. State, 256 S.W. 3D 264 (Tex. Crim.APP.2008) PG# 11

Ortiz v. State, 93 S.W. 3D 79 (Tex. Crim.APP.2002) PG# 11

Stafford v. State, 813 S.W. 2D 503,506 (Tex. Crim.APP.1991) PG# 9,10

US v. Garber, 47 F. 2D 212 (5th Cir 1972) PG# 10

Rules

Texas Rules of Evidence Rule 404(b) PG# 7,8,9

Texas Rules of Appellate Proc. 66.3(a)(d) PG# 7

Texas Rules of Evidence Rule 103(d) PG# 11

Federal Rules of Evidence Rule 103(e) PG# 11

References

Plain Error - Blacks Law Dictionary PG# 10 Statement of the Case

On October 2, 2012 petitioner cashed a check in the amount of $523.56 from

the account of Timothy Guthrie at Texas Bank. Several Days later, Tim Guthrie

contacted the bank alleging that he had not signed the check the petitioner cashed.

Mr. Guthrie contacted the Stephenville Police and provided a written statement

denying he had given the check to the appellant. Based on Tim Guthrie's statement

Stephenville Police Department obtained a warrant for the arrest of petitioner. On

November 8th, 2012 petitioner was arrested when he arrived at a traffic stop

conducted by Stephenville Police. After searching petitioners wallet checks made

payable to petitioner were found as well as debit cards, workforce card and a Texas

State ID not belonging to petitioner. These items were seized. Once at the jail

another search of petitioners wallet by Erath County Jail Staff resulted in the

alleged seizure of a small plastic bag containing .06 grams of methamphetamine. Statement of Procedural History

The petitioner was indicted for the crime of Forgery by Passing by the Grand

Jury in the 266th Judicial District on February 19, 2013. The case was called to trial

by jury on May 15, 2013. The jury returned a guilty verdict that same day. On May

16, 2013 the jury returned a sentencing verdict of 10 years confinement and

assessed a fine of $2000.00. On June 11, 2013 petitioner timely filed his notice of

appeal. On June 5, 2015 an opinion was filed by the Eleventh District Court of

Appeals in Eastland, Texas affirming the trial courts judgement. Motion for

rehearing was not filed. Grounds for Review

Issue No. 1

Petitioner was denied a fair trial because the trial court erred in allowing into

evidence during the guilt - innocence phase of the trial evidence of extraneous

offenses in violation of Rule 404(b) of the Texas Rules of Evidence. Trial courts

error is plain error or "error of apparent record", there by subject for appellate

review without being preserved to the record by timely motion, complaint and/or

objection.

Reason for Review

The Court of Appeals decision to not review trial courts error of admitting

prejudicial extraneous offense evidence because it was not preserved to the record

conflicts with the applicable provisions of the applicable statutes, as well, the

decision of other court of appeals. Tex R. App. Proc. 66.3(a)(d)

Question for Review

Should an obvious error(s) in the trial courts admission of evidence of

extraneous offense that creates much prejudice and denied defendant a fair trial

escape review by the court of appeals due to trial counsels failure to preserve the

error(s) to the record? Summary of Argument

Rule 404(b) of the Texas Rules of Evidence prohibits the admission into

evidence, evidence of other crimes, wrongs or acts to prove the character of a

person in order to show action in conformity there with. During the guilt -

innocence portion of petitioner's trial the state continually placed before the jury,

evidence related to other crimes or bad acts to show that petitioner's character was

that of a criminal and that in the instant case the petitioner acted in conformity with

that character. This evidence was in the form of other checks and debit cards

unrelated to the charge in this case that were admitted into evidence. A video tape

interview conducted by Stephenville Police Department Detective Roger Dixon

that discussed criminal activity in which petitioner was allegedly involved, but

which had no connection to the forgery for which petitioner was standing trial, was

also among this evidence. Admission of this evidence was a obvious violation of

Rule 404(b) of the Texas Rules of Evidence. It created extreme prejudice and

resulted in the petitioner being denied a fair trial in violation of the 14th

Amendment of the United Stated Constitution. As such, errors that are plain or

obvious are subject to appellate review without having to be preserved to the

record by timely objection, complaint or motion, which petitioner argues is

applicable in this case. The errors are so numerous, egregious and denied the petitioner the right to be tried fairly and impartially on the sole charge that he had

been indicted.

Argument and Authorities

Petitioner was denied a fair trial because the trial court erred in allowing into

evidence during the guilt - innocence phase of the trial evidence of extraneous

offenses in violation of Rule 404(b) of the Texas Rules of Evidence. Trial courts

error is "plain error", thereby subject to review without being preserved to the

record.

The State introduced into evidence on multiple occasions during the guilt -

innocence phase of the trial evidence of other crimes which the petitioner may or

may not of been involved in, but that were not directly relevant to the guilt or

innocence of the petitioner for the charge which he was being tried. States Exhibit

4 and 5 are allegedly forged checks seized from petitioner on November 8, 2012.

States Exhibit 6 is a custodial interrogation of petitioner by Stephenville Police

Department Detective Roger Dixon which includes not only information

concerning the crime that he was charged, but ultimately information regarding an

alleged criminal ring that was engaged in theft and forgery throughout the

Stephenville area that was not relevant as to whether the petitioner was guilty of

knowing that the check he passed in the charge which he was standing trial was in

fact forged. This court found that an accused must be tried only for the offense with

which he or she is charged. The accused may not be tried for "a collateral crime or

for being a criminal generally" Stafford v State, 813 S.W. 2D 503,506 (Tex.

Crim.APP.1991). In this case the State repeatedly put before the jury instance after

instance where it was alleged that petitioner was not standing trial for, nor had he

been charged with.

The trial courts failure to not exclude this evidence of extraneous offenses

had an egregious negative effect on the substantial rights of petitioner. Johnson v.

State, 967 S.W. 2D 410,417 (Tex. Crim.APP. 1998) petitioner had the right to be

tried for the alleged crime of which he had been indicted of passing a single forged

check. This right was violated by the admission of the video alone, but even more

so by the admission of the other checks and testimony specifically concerning

extraneous offense without such a guilty verdict would not have been possible.

This error by the trial court in allowing the admission of evidence of

extraneous offense is so obvious that it should be considered a "plain error" and of

been reviewed by the appellate court despite trial counsels failure to raise a proper

objection. US v. Garber, 47 F. 2D 212 (5th Cir 1972)

Plain error is defined as: An error that is so obvious and prejudicial that an

appellate court should address it despite the parties failure to raise a proper

objection at trail - A Plain Error is often said to be so obvious and substantial that

failure to correct it would infringe a party's due process rights and damage the

10 integrity of the judicial process. (Also termed fundamental error; error apparent of

record) Blacks Law Dictionary.

In this case the petitioners due process right to be tried on the charge in the

indictment and not on an extraneous offense was violated by the courts failure to

exclude the extraneous offense evidence Texas Rules of Evidence Rule 103(d),

then again by the appeals court failure to review the numerous errors of admission

of extraneous offense evidence that was so abundantly present in this trial, because

his trial counsel failed to preserve the errors, regardless of the effects had. Federal

Rules of Evidence Rule 103(e)

Petitioner asks that this court review this case in light of the "Plain Error"

rule. "Harm is egregious if it deprives a defendant of a fair and impartial trial."

Nealv. State, 256 S.W. 3D 264 (Tex. Crim.APP.2008)

"Egregious harm for which alleged error is reviewed when there is no

objection in the trial court, exists when the defendant has been denied a fair and

impartial trial." U.S.C.A Const. Amend 6, Ortiz v. State, 93 S.W. 3D 79 (Tex.

Crim.APP.2002)

The petitioner in this case was tried almost exclusively by extraneous

offense evidence, and it would be a falsity to claim that his trial was fair and

impartial. The prejudicial effect of the admission of the extraneous offense

evidence was so extensive that a conviction would not have been obtained without

it.

11 Prayer for Relief

Therefore the petitioner prays that this court will grant review in this case

and reverse the decision ordered by the Eleventh Court of Appeals Division, and

any and all other relief which he may be entitled

Respectfully

Morris Landon Johnson II TDC# 01877943 CoffieldUnit 2661 F. M. 2054 Tennessee Colony, Texas 75884

Certificate of Service

I hereby certify that a true and correct copy of the above and forgoing document has been forwarded by United States first class mail to the following:

Mr. Alan Nash Erath County District Attorney P. O. Box 30 Stephenville, Texas 76401

State Prosecuting Attorney P. O. Box 12405 Austin, Texas 78711

12 w^

11TH COURT OF APPEALS EASTLAND, TEXAS JUDGMENT

Morris Landon Johnson, II, * From the 266th District Court of Erath County, Trial Court No. CR13895.

Vs. No. 11-13-00174-CR * June 5,2015

The State of Texas, * MemorandumOpinion by Wright, C.J. (Panelconsists of: Wright, C.J., Willson, J., and Bailey, J.)

This court has inspected the record in this cause and concludes that there is no error inthe judgment below. Therefore, inaccordance with this court's opinion, the judgment ofthe trial court is in all things affirmed. Opinion filed June 5,2015

In The

eieuentl) Court of appeal* No. 11-13-00174-CR

MORRIS LANDON JOHNSON, II, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 266th District Court Erath County, Texas Trial Court Cause No. CR13895

MEMORANDUM OPINION

The jury convicted Morris Landon Johnson, II offorgery by passing acheck without authorization. See Tex. Penal Code Ann. §32.21 (West 2011). Appellant pleaded true to two enhancement paragraphs, and me jury assessed punishment at confinement for aterm often years and afine of$2,000. The trial court sentenced him accordingly. We affirm. In his sole issue on appeal, Appellant argues that the trial court denied him a fair trial when it admittedevidence ofextraneous offenses inviolation ofRule 404(b) ofthe Texas Rules ofEvidence. The State contends that the evidence was admissible

either as same transaction contextual evidence or that the evidence was admissible

to show motive, intent, plan, knowledge, or absence of mistake or accident. We review atrial court's decision to admit or exclude evidence under an abuse

of discretion standard. Montgomeryv. State, 810 S.W.2d 372,391 (Tex. Crim. App. 1991) (op. on reh'g). We will reverse a trial court's ruling only if it is outside the "zone ofreasonable disagreement." Id. Rule 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. Tex. R. Evid. 404(b). The rule further provides that evidence may be admissible for other purposes, such as proof ofmotive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. Extraneous offense evidence may be admissible for purposes other than those expressly listed, such as when the evidence is found to be same transaction contextual evidence. Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993); Montgomery, 810 S.W.2d at 388. The trial court admitted three exhibits—State's Exhibit Nos. Four through Six—and correspondingtestimony, regarding extraneous offenses. Defense counsel objected to the admission of some, butnotall, of the extraneous conduct offered by the State.

The record shows that Appellant cashed a checkwritten on Timothy Guthrie's account at Texas Bank in Stephenville; Appellant's actof cashing thatcheck formed the basis for the charges in this case. Guthrietestified that he did not write the check, nor did he give anyone else permission to write the check to Appellant. When OfficerMarty Golightly, ofthe Stephenville Police Department, arrestedAppellant, he searched Appellant's billfold and found several checks, two of which were admitted into evidence as State's Exhibit Nos. Four and Five. State's Exhibit No. Four was another check written on Guthrie's account and made payable to

2 Appellant. State's Exhibit No. Five was a check written on Joseluis Gomez's account and was also made payable to Appellant. Officer Golightly also found an account card, a workforce card, and an identification card that did not belong to Appellant. Defense counsel did not object to Officer Golightly's testimony regardingwhat he found when he searchedAppellant. As to State's Exhibit No. Four, defense counsel initially objected that the check was notproperly identified, andthe trial courtdidnot admitthe exhibit at that time. However, the State later reofifered the exhibit, and defense counsel indicated that he had no objection. Defense counsel also did not object to the admission of State's Exhibit Nos. Five and Six. State's Exhibit No. Six was the recorded interview of Appellant in which Detective RogerDixon questioned Appellant about a conspiracy to commit forgery. The State asked Detective Dixon about his knowledge ofthe various ways and schemes that people employ to conduct forgeries. Defense counsel objected to the detective's "opinion about some schemes or - in another case," and the trial court overruled the objection. However, Detective Dixon testified ingeneral terms, based onhis experience in investigating financial crimes, about various ways andschemes (hat people use to conduct forgeries. At that point, Detective Dixon was not discussing other specific offenses. The State then asked the detective what Appellant's own description ofhis activities indicated. Defense counsel objected on the ground that the question called for an opinion on the ultimate"issue, and-the trial eourt sustained the objection. Subsequently, the State asked Detective DixoaJntwo questions, whether Appellant admitted during toeInterview that he helped pass a number offorged checks and that hesigned a"scribble" on asignature line. Defense counsel raised^an extraneous offense objection to each question, and the trial court sustained both objections. During closing arguments, defense counsel mentioned the check written on Gomez's account, and he did not object when the prosecutor discussed the extraneous offenses. In addition, during deliberations, thejury requested that several exhibits, including State's Exhibit Nos. Four, Five, and Six, be sent to them, and defense counsel and Appellant agreed with the trial court's proposal to send the exhibits to the jury. We also note that the trial court included an extraneous offense instruction in thejury charge at both stages of the trial. The record shows that, even when defense counsel objected to testimony regarding extraneous offenses, he did not pursue the matter further to an adverse ruling. Defense counsel did not ask for further relief, such as a request for ajury instruction or a motion for mistrial, after the trial court sustained his objections. Therefore, Appellant has not shown that he received an adverse ruling inconnection with the extraneous offense evidence. Because Appellant has not shown that he received an adverse ruling in those instances when he did object to the extraneous offense evidence and because Appellant failed to object to the admission of the remainder of the evidence regarding the extraneous offenses, he has failed to preserve error for our review. SeeTex. R. App. P. 33.1. Appellant's soleissue on appeal is overruled. We affirm the judgment ofthe trial court.

JIM R. WRIGHT

June 5,2015 CHIEF JUSTICE Do not publish. See Tex. R App. P. 47.2(b). Panel consists of: Wright, C.J., Willson, J., and Bailey, J.