Joseph Anthony Johnson v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: December 21, 2021
• Docket: 07-20-00053-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-20-00053-CR

JOSEPH ANTHONY JOHNSON, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 100th District Court Carson County, Texas Trial Court No. 6209, Honorable Stuart Messer, Presiding

December 21, 2021 MEMORANDUM OPINION Before QUINN, C.J. and PIRTLE and DOSS, JJ.

In February 2019, Appellant, Joseph Anthony Johnson, pleaded guilty to two

counts, each alleging the commission of a second-degree felony sexual assault of a

child.1 He also pleaded “true” to an enhancement involving a prior felony conviction for

burglary of a dwelling.2 The trial court deferred the adjudication of his guilt for each and

1 See TEX. PENAL CODE ANN. § 22.011(a)(2), (f).

2 Appellant’s plea of “true” raised his punishment range to that of a first-degree felony. See TEX.

PENAL CODE ANN. § 12.42(b). Thus, his potential range of punishment for each offense was life imprisonment or for any term not more than ninety-nine years or less than five years, and a fine not to exceed $10,000. See id. § 12.32(a).

1 placed him on community supervision for eight years. The State subsequently moved to

adjudicate his guilt based on multiple violations of various conditions of his community

supervision. After conducting an evidentiary hearing on the motions, the trial court found

appellant violated six conditions of his community supervision, adjudicated him guilty on

both counts of sexual assault of a child, and assessed punishment. Enhanced to that of

a felony of the first degree, punishment consisted of two 75-year sentences (to run

consecutively) and a $2,500 fine (in count one).

On appeal, appellant asserts eight points of error. The first six concern whether

the trial court abused its discretion by finding that he violated six conditions of his

community supervision. The second involves whether the sentences assessed were

grossly disproportionate to the offenses committed. And, the last implicates the accuracy

of a statement in the judgment.3 We overrule the first seven points of error and sustain

the eighth.

Record Evidence

At the hearing, the State presented three witnesses. They were two community

supervision officers and one licensed professional counselor and sex-offender treatment

provider. The former testified that 1) appellant executed a copy of his community

supervision conditions after they were explained to him and indicated he understood the

conditions; 2) he violated conditions of his community supervision; and 3) those violations

included his failing to send in his monthly reports for several months, failing to pay his

probation fees for two months, failing to make his full court-ordered payments, failing to

3 In its brief, the State candidly concedes appellant is correct on his eighth point of error and the judgments should be reformed.

2 complete forms explaining why he failed to make full payments, completing only four

hours of his 100-hour community service obligation, failing to complete his sex-offender

counseling requirement, and failing to pay his fees for sex-offender counseling. One

officer opined that he was not a good candidate for continued community supervision due

to those violations.

The professional counselor testified that although appellant attended most

counseling sessions, he 1) made little progress, 2) failed to take accountability for his

crimes, 3) expressed anger towards the victim, the system, and the courts, and 4) cursed

at another counseling participant, engaged in aggressive behavior, followed the

participant to the parking lot, called him a “f**ing child molesting b***ch,” and threatened

to “find out where [the person lived] and come f**k his daughter.” These circumstances

resulted in his rejection from the counseling program.

Appellant testified and generally excused his behavior by blaming others and his

circumstances, denying the State’s evidence, claiming to be misunderstood, and calling

the State’s witnesses “liars.” On cross examination, he testified that his criminal history

encompassed his entire adult life. In 2003, he committed felony larceny and grand theft

in Florida. In 2005, he was convicted of felony burglary of a dwelling and grand theft in

Florida and was imprisoned. In 2014, he was arrested for disorderly conduct in Ohio.

He further explained that the incident giving rise to the prosecutions at bar occurred

when he contacted an acquaintance to obtain methamphetamine. They met at a rest

stop, drove to a hotel with a 15-year-old girl and two very young children.4 He and his

friend had sex with the 15-year-old all night and in the presence of the two other children.

4 The children were two and five years old.

3 After being charged with two counts of sexual assault of a child, appellant

absconded to Michigan, where he was arrested and returned to Texas. Upon posting bail

in Amarillo, he again absconded only to be arrested in South Texas. During the arrest,

he tried to escape and assaulted a deputy. On his person at the time were fraudulent

identity documents.5

When finally returned to Amarillo and awaiting trial, he pled guilty to two counts of

second-degree sexual assault of a child and “true” to an enhancement for felony burglary.

So too did he plead guilty to the third-degree felony offense of failure to appear. That

resulted in the deferral of his adjudication of guilt and placement on community

supervision.

At the end of the hearing on the State’s motion to adjudicate guilt, the trial court

found the State’s witnesses credible, found he violated six conditions of his community

supervision, granted the State’s motions, adjudicated appellant guilt and levied the

aforementioned sentences. When doing so, it noted appellant’s treatment of the

underage girl when she was repeatedly sexually assaulted and his attitude towards her

after the commission of the assaults, his failure to take responsibility for his crimes, his

long criminal history, and his transient lifestyle of traveling the country while committing

felonies in various states.

Revocation

We first consider appellant’s issues one through six. They concern whether the

trial court abused its discretion in granting the motions to adjudicate guilt, revoking his

5 Appellant had obtained a birth certificate and social security card from an acquaintance.

4 probation, and adjudicating him guilty of the two sexual assaults. Furthermore, we

overrule them.

The pertinent standard of review is that we outlined in Adame v. State, No. 07-19-

00007-CR, 2019 Tex. App. LEXIS 10765, at *6 (Tex. App.—Amarillo Dec. 11, 2019, no

pet.) (mem. op., not designated for publication). It is one of abused discretion. Id. at *6–

7. Implicit therein is the State’s obligation to prove by a preponderance of the evidence

that appellant violated at least one term or condition of his community supervision. Id. In

deciding if it did, we view the evidence in a light most favorable to the trial court’s ruling.

Id. at *7.

There is no need to reiterate the evidence establishing at least one violation by

appellant. We discussed it under the heading “Record Evidence” above. It more than

suffices to establish at least one violation of his conditions of community supervision.

Thus, the trial court did not abuse its discretion in revoking his supervision and

adjudicating his guilt.

Cruel and Unusual Punishment

Next, we address appellant’s contention that the two consecutive 75-year

sentences were grossly disproportionate to the offenses he committed. Allegedly being

so, they violated his constitutional right against suffering cruel and unusual punishment.

We overrule the issue.

Our evaluation of a disproportionality challenge like that at bar begins with a

comparison of the gravity of the offense with the severity of the sentence. Buster v.

State, No. 07-20-00099-CR, 2021 Tex. App. LEXIS 2169, at *5 (Tex. App.—Amarillo Mar.

22, 2021, pet. ref’d) (mem. op., not designated for publication). That entails our

5 consideration of the harm caused or threatened to the victim, the offender’s culpability,

and the offender’s prior adjudicated and unadjudicated offenses. Id. at *5–6. Only when

we are able to infer a sentence is grossly disproportionate to the offense will we compare

the defendant’s sentence to others received for similar crimes in this jurisdiction or

sentences received in other jurisdictions. Id. at *6. Moreover, a sentence within the

statutory range of punishment is not excessive, cruel, or unusual. Id. Indeed, our Court

of Criminal Appeals has characterized “the sentencer’s discretion to impose any

punishment within the prescribed range to be essentially ‘unfettered.’” Ex parte Chavez,

213 S.W.3d 320, 323 (Tex. Crim. App. 2006); Buster, 2021 Tex. App. LEXIS 2169, at *6.

“Subject only to a very limited, ‘exceedingly rare,’ and somewhat amorphous Eighth

Amendment gross-disproportionality review, a punishment that falls within the

legislatively prescribed range, and that is based upon the sentencer’s informed normative

judgment, is unassailable on appeal.” Ex parte Chavez, 213 S.W.3d at 323–24. With

that in mind, we turn to the record at bar.

Here, appellant pled guilty to two counts of sexual assault of a child. Though the

punishment range for each is normally between two and twenty years, inclusive, see TEX.

PENAL CODE ANN. §§ 22.011(a)(2), (f), 12.33(a), it was enhanced here due to his plea of

true to a prior felony conviction. The prior conviction elevated the range to that of a first-

degree felony, i.e., a term of imprisonment ranging from five to 99 years, inclusive, and a

fine not to exceed $10,000. Id. §§ 12.32(a), (b), 12.42(b). The sentences levied here

not only fell within that range but were much less than the maximum which could have

been assessed. Thus, they were not constitutionally cruel and unusual. See Buster,

2021 Tex. App. LEXIS 2169, at *6 (noting that a sentence within the statutory range is

6 not constitutionally cruel and unusual). Nor were they grossly disproportionate to the

offenses committed.

Again, appellant and his friend repeatedly raped a 15-year-old in the presence of

children. Never did he express remorse or responsibility but, instead, illustrated disdain

towards the victim, “the system,” and the judiciary.

So too had appellant engaged in criminal conduct for at least 18 of his 34 years

of life. He committed his first felonies in Florida when he was sixteen years old; those

crimes included felony burglary, grand larceny, and grand theft. Other acts of disorderly

conduct, criminal mischief, larceny, burglary, theft, and grand theft followed, not only in

Texas but other States. So too was he an admitted methamphetamine abuser, and that

culminated with the two sexual assaults here. Nor can we ignore his attempt to abscond

from prosecution and his assault upon a peace officer when eventually arrested in South

Texas. And, though also being afforded an opportunity to rehabilitate himself while on

community supervision, he failed to abide by multiple conditions of his probation.

“In our view, the [foregoing] evidence permitted the trial court to conclude

[a]ppellant had not taken either his . . . offense or his community supervision seriously.”

Buster, 2021 Tex. App. LEXIS 2169, at *8–9. Nor did he take seriously the opportunity

afforded him to avoid a final felony conviction and amend his behavior, or so the trial court

could have inferred. Consequently, “[t]he record does not permit us to find this is one of

those ‘rare’ cases in which the sentence is grossly disproportionate to the offense.” Id. at

*9. And, that means appellant failed to clear the initial prong to the disproportionality test.

7 Reformation of the Judgments

Issue 8 concerns modification of the judgment to accurately reflect the nature of

the felonies for which appellant was convicted. Both parties agree modification is

necessary.

Here, each judgment reflects that appellant’s offenses consisted of two “1st

Degree Felonies.” In actuality, they were “2nd Degree Felonies” with the concomitant

punishment enhanced as though they were felonies of the first degree.6 Consequently,

we reform both to reflect same. See Ramirez v. State, 336 S.W.3d 846, 852 (Tex. App.—

Amarillo 2011, pet. ref’d) (stating an appellate court’s authority to reform a judgment to

properly reflect the record).

We 1) modify the judgments of the trial court to reflect appellant was convicted of

two second-degree felonies, punishments for which were enhanced to the level applicable

to felonies of the first degree, and 2) affirm the judgments as modified.

Per Curiam

Do not publish.

6 An offense which is “punished as” a higher offense only raises the level of punishment and not

the degree of the offense. See Sharp v. State, No. 07-19-00409-CR, 2020 Tex. App. LEXIS 7124, at *1 n.2 (Tex. App.—Amarillo 2020, pet. ref’d) (mem. op., not designated for publication) (citing Oliva v. State, 548 S.W.3d 518, 526 (Tex. Crim. App. 2018)); see also TEX. PENAL CODE ANN. § 12.42.