Johnson v. State

• Decision Date: 11 June 1998
• Docket Number: No. 08-95-00048-CR,08-95-00048-CR
• Citation: 975 S.W.2d 644
• Parties: Cecilia Rene Sanders JOHNSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 644

975 S.W.2d 644

Cecilia Rene Sanders JOHNSON, Appellant, v. The STATE of Texas, Appellee.

No. 08-95-00048-CR.

Court of Appeals of Texas,

El Paso.

June 11, 1998.

Rehearing Overruled Sept. 9, 1998.

John Gates, Assistant City Attorney, El Paso, John S. Fischer, Huntsville, for Appellant.

Jaime E. Esparza, District Attorney, El Paso, for State.

Before BARAJAS, C.J., and McCLURE and CHEW, JJ.

OPINION

McCLURE, Justice.

Cecilia Rene Johnson appeals her conviction for murder. ¹ Upon the jury's finding of guilt, the trial court assessed punishment at imprisonment in the Institutional Division of the Texas Department of Criminal Justice for a term of fifteen years. We affirm.

SCOPE OF REVIEW ON REMAND

On original submission, a panel of this Court reversed Appellant's conviction because of a denial of her right to a speedy trial. Johnson v. State, 925 S.W.2d 350 (Tex.App.--El Paso 1996). Inherent in the decision was the recognition of a community right to a speedy trial. As a result of the disposition, Appellant's other points of error were not reached. Declaring that there is no community right to a speedy trial and that any community interest is already encompassed within the Barker v. Wingo balancing test, the Court of Criminal Appeals reversed and remanded the cause to us. Johnson v. State, 954 S.W.2d 770 (Tex.Crim.App.1997), citing Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 116-17 (1972).

The Rules of Appellate Procedure do not specifically address procedures in the courts of appeals after remand by the Court of Criminal Appeals. Not surprisingly, Appellant and the State disagree as to the scope of our review. Appellant contends that we may only revisit the third prong of the Barker v. Wingotest concerning her assertion of the right to a speedy trial; she maintains that we may not revisit the other three factors which the original panel weighed in her favor. The State argues that because the Court of Criminal Appeals reversed and remanded for us "to analyze appellant's speedy trial claim in a manner consistent with this opinion," we must reconsider all of the Barker v. Wingo factors. Johnson, 954 S.W.2d at 774. The State also points to the fact that the Court dismissed without prejudice the State's fourth ground of error, which inquired: "Did the El Paso Court of Appeals consider all relevant evidence in the record and afford proper deference to the trial court as primary fact finder in holding that appellant's constitutional right to a speedy trial was violated?" In footnote six, the Court responded:

Because the Court of Appeals' application of the balancing test itself is flawed, and we reverse, in part on that basis, we feel that addressing the State's fourth ground of error would be premature.

Id. at n. 6.

In the absence of a precise directive, the scope of our review upon remand is rather broad. We begin our analysis with a discussion of Garrett v. State, 749 S.W.2d 784 (Tex.Crim.App.1986). Following a jury verdict finding Garrett guilty of murder, the court of appeals reversed on the basis of unassigned fundamental error in the jury charge. Finding that the charge error did not constitute fundamental error, the Court of Criminal Appeals reversed and remanded to the court of appeals "for consideration of appellant's (assigned) grounds of error." Garrett, 749 S.W.2d at 786. Garrett filed a motion for rehearing, alleging for the first time insufficiency of the evidence. The motion was denied. After remand, Garrett filed an amended brief in the court of appeals urging that the evidence was insufficient to support the guilty verdict. The court of appeals agreed, again reversed and remanded to the trial court for entry of an order of acquittal. On petition for discretionary review, the State complained that the court of appeals was without jurisdiction to entertain an amended or supplemental brief raising grounds of error not contemplated under the higher court's remand order. The Court of Criminal Appeals disagreed:

[W]here a court of appeals renders a decision that reverses judgment of conviction without ruling on all grounds of error raised on appeal, and on discretionary review this Court determines that the reason for that decision is erroneous and reverses the judgment of the court of appeals, we have removed as a bar whatever error led the court below to pretermit determination of other matters within its jurisdiction, power and authority on direct appeal. There is nothing left for this Court to review, and if the court of appeals is to exercise its direct appeal jurisdiction the only proper disposition of the cause by this Court is to remand it to the court of appeals for that purpose.

...

When jurisdiction over the cause is restored by remand neither statutes nor scanty prior decisions cited above dictate that the court of appeals is limited in its renewed appellate consideration of the cause to the terms of our order of remand.

Garrett, 749 S.W.2d at 786-87.

A similar result occurred in Adkins v. State, 764 S.W.2d 782 (Tex.Crim.App.1988). There, the court of appeals reversed the conviction because the trial court erred in failing to suppress evidence seized under an invalid warrant. The Court of Criminal Appeals vacated the judgment and remanded for a determination as to whether there were exigent circumstances to support the warrantless arrest. On remand, the court of appeals found no exigent circumstances but upheld the arrest warrant on other grounds. Discretionary review was again granted, this time to determine whether the intermediate court erred in not limiting review to the question on remand. In affirming, the high court noted that upon remand the exercise of the reviewing function of an intermediate appellate court is limited only by its own discretion or a valid restrictive statute. Adkins, 764 S.W.2d at 784, citing Carter v. State, 656 S.W.2d 468 (Tex.Crim.App.1983). Further, upon remand to a lower court, "the jurisdiction originally granted to the court by constitutional and statutory mandate is fully restored by the order of abatement and remand." Adkins, 764 S.W.2d at 784.

This broad brush of remand review was narrowed somewhat in Williams v. State, 829 S.W.2d 216 (Tex.Crim.App.1992). The jury found the defendant guilty of capital murder; the Waco Court of Appeals affirmed. On petition for discretionary review, the Court of Criminal Appeals reviewed the defendant's claim that an out-of-court declaration by an accomplice was inadmissible because it failed to comply with the co-conspirator's exception to the hearsay rule. The court reversed and remanded to the court of appeals with the following directive:

In the instant cause the Court of Appeals has yet to decide whether the statement in issue was made 'in furtherance of' what appellant concedes was an ongoing conspiracy. We therefore remand this cause to that court for reconsideration of appellant's first point of error.

Upon remand, the intermediate court determined that the statements were not made in furtherance of the conspiracy and were not admissible under TEX.R.EVID. 801(e)(2)(E), but nevertheless found the statements admissible under the exception to the hearsay rule allowing admission of statements against interest. The Court of Criminal Appeals again granted the petition for review, finding that "the Court of Appeals' reasoning in its opinion exceeded the scope of this Court's remand order. We also find that the Court of Appeals erred in not fully complying with this Court's remand order." The Court emphasized that whether the statement was admissible or inadmissible under TEX.R.EVID. 803(24) was never briefed, argued, or raised on appeal by either side.

Under our remand order, the question of whether the statement was admissible under Rule 803(24) was not properly before the Court of Appeals. The Court of Appeals' endeavor to analyze the admissibility of this statement in the context of Rule 803(24) stepped outside the scope of this Court's remand order. In light of this, we disavow the reasoning of the Court of Appeals on the issue of the admissibility of the accomplice's statement under Rule 803(24), and reverse their decision.

Williams, 829 S.W.2d at 217. Accordingly, the cause was remanded for a harm analysis under former TEX.R.APP.P. 81(b)(2).

Most recently, the scope of remand was considered by the Waco Court of Appeals in Calhoun v. State, 951 S.W.2d 803 (Tex.App.--Waco 1997, pet. ref'd.). The defendant's convictions were originally affirmed by that Court. Id. The Court of Criminal Appeals granted the petition for discretionary review and reversed and remanded to the Waco Court for the specific purpose of reconsidering the merits of two points of error which had challenged the sufficiency of the evidence to support the convictions and which the intermediate court had found to be waived. On remand, the defendant filed an amended brief complaining that the court of appeals had applied an improper standard in determining in its initial opinion that charge error had been waived. The Court then addressed whether this complaint, not being one of the specific points mentioned in the directive on remand, was appropriate for consideration. It concluded:

[T]he appellate court is vested with the jurisdiction to address not only the specific points which were the subject of the remand, but also to reconsider points of error in its earlier decision which the Court of Criminal Appeals refused to review.

Distinguishing the facts of this case from Williams v. State, the Court continued:

[W]e feel compelled to exercise our jurisdiction in reviewing the merits of Calhoun's first point of error. Our reconsideration of Calhoun's first point of error does not conflict with Williams v. State, in which the Court of Criminal Appeals found that we had exceeded the scope of remand by deciding the case on 'a matter, not argued, not briefed, and not raised on appeal by either side.' 829...