Carter v. State
|08 June 2022
|JOHNNIE EDISON CARTER, Appellant v. THE STATE OF TEXAS, Appellee
|Texas Court of Appeals
DO NOT PUBLISH
Submitted on January 31, 2022
On Appeal from the Criminal District Court Jefferson County Texas Trial Cause No. 15-22215
Before Golemon, C.J., Kreger and Horton, JJ.
Appellant Johnnie Edison Carter,  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 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.
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. 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 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.
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 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.
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.
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.
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.
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.
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.
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.
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.
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.
"[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 a preponderance of the evidence." Hacker v State, 389 S.W.3d 860,...
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