Johnson v. State

• Decision Date: 05 September 2013
• Docket Number: No. 14–12–00204–CR.,14–12–00204–CR.
• Citation: 416 S.W.3d 602
• Parties: Kendric JOHNSON, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

416 S.W.3d 602

Kendric JOHNSON, Appellant

v.The STATE of Texas, Appellee.

No. 14–12–00204–CR.

Court of Appeals of Texas,

Houston (14th Dist.).

Sept. 5, 2013.

Kurt B. Wentz, Houston, for Appellant.

Eric Kugler, Houston, for Appellee.

Panel consists of Justices BOYCE, JAMISON and BUSBY.

OPINION

WILLIAM J. BOYCE, Justice.

A jury convicted appellant Kendric Johnson of bail jumping and failure to appear, and assessed his punishment at 16 years in prison.¹ Appellant challenges his conviction based on (1) sufficiency of the evidence; (2) jury charge error; and (3) improper jury argument. We affirm.

Background

Appellant was charged with aggravated robbery, arrested, and later released on bail on October 7, 2010. He appeared in court on October 8, and his court date was reset several times so he could hire an attorney. Appellant returned to court on October 29 and November 5. He declared indigence on November 5, and the trial court appointed Luci Davidson as counsel to represent him in further proceedings. Appellant failed to appear for his next set court date on December 8, 2010. The trial court immediately issued a warrant for his arrest and entered a forfeiture judgment against him two days later. On February 3, 2011, appellant was arrested and returned to custody.

A two-day jury trial was held beginning on February 29, 2012. The jury found appellant guilty of bail jumping and failure to appear, and returned a sentence of 16 years in prison. Appellant filed a timely appeal.

Analysis

I. Sufficiency of the Evidence

Appellant argues that the evidence is legally insufficient to support his conviction for bail jumping and failure to appear because there is no evidence he had notice of his next court date. Therefore, appellant contends the State cannot establish that he intentionally and knowingly failed to appear in court on that date.

The State is required to prove each element of a criminal offense beyond a reasonable doubt, and the reviewing court uses a legal sufficiency standard in determining whether the evidence is sufficient to support the State's assertions. Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010). A successful challenge to evidentiary sufficiency mandates an acquittal and bars retrial. Graham v. State, 643 S.W.2d 920, 924 (Tex.Crim.App.1981); Banks v. State, 158 S.W.3d 649, 650 n. 1 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). Thus, sufficiency challenges must be addressed regardless of the outcome of other issues in a case. Graham, 643 S.W.2d at 924;Banks, 158 S.W.3d at 650 n. 1.

The court views all of the evidence in the light most favorable to the verdict to determine whether a rational juror could have found all of 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The jury is responsible for resolving conflicts in testimony, weighing the evidence, and drawing reasonable inferences from it; the appellate court cannot substitute its judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App.2010). The legal sufficiency standard of review for the appellate court is the same for direct and circumstantial evidence. Id.;King v. State, 29 S.W.3d 556, 565 (Tex.Crim.App.2000).

To convict a person for bail jumping and failure to appear, the State must prove that the person (1) was lawfully released from custody, with or without bail; (2) on condition that he subsequently appear; and (3) intentionally or knowingly failed to appear in accordance with the terms of his release. SeeTex. Penal Code Ann. § 38.10(a) (Vernon 2011); Walker v. State, 291 S.W.3d 114, 117 (Tex.App.-Texarkana 2009, no pet.); Burns v. State, 958 S.W.2d 483, 488 (Tex.App.-Houston [14th Dist.] 1997, no pet.).

Appellant's first argument on appeal turns on lack of notice, which negates the intentional and knowing element of the criminal offense. See Euziere v. State, 648 S.W.2d 700, 702 (Tex.Crim.App.1983). Appellant contends that the State failed to produce sufficient evidence he had notice to appear.

Proof that the accused was free under an instanter bond is prima facie proof of notice to appear. Solomon v. State, 999 S.W.2d 35, 37 (Tex.App.-Houston [14th Dist.] 1999, no pet.); Richardson v. State, 699 S.W.2d 235, 238 (Tex.App.-Austin 1985, pet. ref'd); see also Euziere, 648 S.W.2d at 702. The bond itself satisfies the State's burden of proving that appellant intentionally and knowingly failed to appear in accordance with the terms of the release unless appellant can establish evidence to the contrary. Solomon, 999 S.W.2d at 37;Richardson, 699 S.W.2d at 238;see also Euziere, 648 S.W.2d at 702;Burns, 958 S.W.2d at 488. If appellant offers evidence that he did not have notice to appear, the State must produce further evidence sufficient to justify a rational factfinder in finding that appellant had actual notice, or engaged in a course of conduct designed to avoid receiving notice. Etchison v. State, 880 S.W.2d 191, 192 (Tex.App.-Texarkana 1994, no pet.); Richardson, 699 S.W.2d at 238.

The facts here parallel Euziere, 648 S.W.2d at 702. The defendant in Euziere was released pursuant to an instanter bond. Id. After several subsequent court appearances, the defendant failed to appear as scheduled on July 31, 1978. Id. The trial court declared his bond forfeited and issued a warrant; the defendant was arrested and indicted for failure to appear. Id.

The defendant contended on appeal that the State did not prove he intentionally and knowingly failed to appear in court on July 31, 1978. Id. At trial, the State introduced the bail bond issued when defendant was first released from custody in September of 1977. Id. That bond set out the terms and conditions of defendant's release, and directed defendant to appear instanter in the court in which he was indicted. Id. The Court of Criminal Appeals stated: “This language apprises appellant of his obligations to the court and sets forth the terms and conditions of appellant's release.” Id. Further, the instanter wording of the bond provided defendant with sufficient and proper notice of when to appear. Id. The Court concluded, “Since appellant had notice of the setting and since appellant asserted ‘no reasonable excuse’ for his failure to appear, the evidence is sufficient to prove that appellant intentionally and knowingly failed to appear in accordance with the terms of his release.” Id.

In a case from this court, a defendant was released on a bond directing him to make a personal appearance before the court “instanter.” Solomon, 999 S.W.2d at 37. Defendant's counsel testified that he wrote a letter notifying defendant of the setting and date of his trial, but sent it to a different address than that listed on the instanter bond. Id. The letter was returned unopened. Id. Defendant's attorney further testified that his secretary either “told defendant's mother of the setting or left a message on her answering machine notifying him of the date.” Id. The court held that the instanter bond was a prima facie showing of notice by the State, and the returned letter was merely evidence that defendant did not receive that letter. Id. Further, the court rejected the defendant's argument that the State failed to meet its burden of proof simply because the court coordinator could not testify to whether defendant received notice. Id. at 38.

Here, Mindy Ochsner, an employee of the Harris County district clerk's office, testified at trial regarding appellant's district court and bond forfeiture files. During Ochsner's testimony, the State introduced appellant's instanter bond into evidence. The instanter bond stated in pertinent part:

THE CONDITION OF THIS BOND IS THAT THE DEFENDANT HAS BEEN CHARGED WITH A Felony offense and to secure his release from custody is entering into this obligation binding him to appear before Dist[rict] Crim[inal Court] 176 County of Harris County, Texas. NOW THEREFORE, IF THE SAID PRINCIPAL SHALL WELL AND TRULY MAKE HIS PERSONAL APPEARANCE BEFORE SAID COURT INSTANTER AS well as before any other court to which the same may be transferred for any and all subsequent proceedings that may be had relative to said charge in the course of criminal actions based on said charge, and there remain from day to day and term to term of said courts, until discharged by the course of law, then and there to answer said accusation against him ...

The bond was signed by appellant on October 7, 2010, the date he was released from custody.

During Ochsner's testimony, the State also introduced the November 5, 2010 order appointing Luci Davidson as appellant's trial counsel. The order stated that appellant's case was reset for December 8, 2010; the order was signed by appellant. Ochsner testified that she did not witness appellant signing the order. She also testified that, as part of the normal court process, an unrepresented defendant typically receives notice of a reset date from the court coordinator; counsel begins to control the interactions between a defendant and the court after appointment. Neither party offered evidence as to how appointed counsel and appellant interacted, and appellant's appointed counsel did not testify at trial.

Appellant introduced a blank version of a single-page order appointing counsel, corresponding to the signed and dated copy introduced by the State. The blank version contained multiple color-coded copies of the single-page order, each designated for a different party, including a copy designated for the defendant. However, neither party presented information as to whether appellant received a copy of the signed version introduced by the State. Appellant's only other evidence was the two reset forms showing that he appeared in court on the two reset dates when he was unrepresented by counsel.

In this case, as in Euziere, it was undisputed that appellant was released on an...