Johnson v. State

Citation967 S.W.2d 410
Decision Date15 April 1998
Docket NumberNo. 72697,72697
PartiesArnold E. JOHNSON, Appellant, v. The STATE of Texas
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
OPINION

MANSFIELD, Judge, delivered the opinion of the Court. McCORMICK, Presiding Judge, and OVERSTREET and PRICE, Judges, join.

A Bexar County jury found appellant, Arnold E. Johnson, guilty of the October 26, 1995, capital murder of Frank Johnson, Jr. See Tex. Penal Code § 19.03(a)(2). 1 At the punishment stage of trial, the jury answered the special issues in such a manner as to require the trial court to sentence appellant to death. See Tex.Code Crim. Proc. article 37.071, § 2(b), (e), & (g). 2 Direct appeal to this Court is automatic. Id. at § 2(h). Appellant brings 53 points of error in his brief to this Court. We will reverse the judgment of the trial court and remand the cause for a new trial.

We will address appellant's evidentiary sufficiency point first, and then we will address points of error numbers one and twelve. Because of our resolution of these points, it is unnecessary for us to address the remainder of appellant's claims.

In point of error number 53, appellant argues that he has been denied his liberty without due process of law because the evidence adduced at trial was insufficient to support the jury's finding of guilt. Appellant argues that because Reginald Taylor, a surviving victim of the offense, was unable to identify him in court as the person who assisted Carl Brooks in the capital murder of Frank Johnson, Jr., there is no evidence linking him to this offense.

The jury charge instructed the jurors that, to find appellant guilty of capital murder, they had to find he committed the offense of murder by intentionally or knowingly causing the death of an individual while in the course of committing or attempting to commit the offense of robbery and/or kidnapping. The charge also included a paragraph on the law of parties. See Tex. Penal Code § 7.02(a)(2).

The Due Process Clause of the Fourteenth Amendment to the United States Constitution requires that every state criminal conviction be supported by evidence that a rational factfinder could find as sufficient to prove all the elements of the offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 362-364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970); Coit v. State, 808 S.W.2d 473, 475 (Tex.Crim.App.1991). Section 2.01 of the Penal Code contains the same requirement. As an appellate court reviewing a cold record long after the jury has evaluated the evidence and made its finding, our task is to consider all the record evidence, direct and circumstantial, in the light most favorable to the jury's verdict, and to determine whether, based on that evidence, any rational jury could have found all the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319-320, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Geesa v. State, 820 S.W.2d 154, 158-159 (Tex.Crim.App.1991) . In determining sufficiency of the evidence, we consider all the evidence, admissible and inadmissible. Gardner v. State, 699 S.W.2d 831, 835 (Tex.Crim.App.1985). If, based on all the evidence, a reasonably-minded jury must necessarily entertain a reasonable doubt of the defendant's guilt, due process requires that we reverse and order a judgment of acquittal. Appellate judges are not factfinders, however; we may not reevaluate the weight and credibility of the record evidence. Rather, we act only "as a final, due process safeguard ensuring ... the rationality of the factfinder." Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988).

The State presented twenty-six witnesses and numerous exhibits at guilt/innocence in an effort to prove its case. The most incriminating evidence came from a statement made by the surviving victim, Reginald Taylor:

My name is Reginald Taylor, I am 17 years old. My date of birth is 12-05-77. I live at 556 Pennystone with my Mother and brother Christian Taylor. I went to the Cass Job Corps in Arkansas and I got an Arkansas High School Diploma. I can read and write and understand English. I am not working right now but I'm putting in applications I used to work at Bill Millers.

I have come to the Homicide Office at the San Antonio Police Department, to give Detective Hernandez a statement about how my friend Frank Johnson got killed.

At 2:30 p.m. on October 26th 1995 I ran into Frank Johnson at the Candle Stick Apartments off of Rigsby. I know Frank Johnson as Frank Jr. I have known him for three weeks. He was in a white car I don't know what the make was, When I saw him he was going to his apartment, I waited downstairs, with a friend of mine named Demetrius DeLane I call him Mickery. When frank Jr. Came down he said I'm gonna go drop some "dank" off "dank" being pot, marijuana. Mickery said why don't you give us some and Mickery went up and got a joint. After that we all left and Frank Jr. said I Gotta go to Big Arnold's garage. All I knew is that it was by the Phillips 66 at MLK and 10. He asked if either one of us had a beef with big Arnold or little Arnold or any of them "Jolly Time niggers". Mickery said yea I got a beef with big Arnold and little Arnold. I said lets go, Mickery had a Glock 40. Frank parked near the Phillip 66 and frank went to Big Arnold's garage. He took the pound of weed in a towel. He wasn't coming back, about five minutes passed and Little Arnold Ross, His Daddy big Arnold owns the Garage. Little Arnold said that Frank Jr. Had told hm to bring the car round back. So we believed him and he parked the car in the back near the gates. Little Arnold said Frank told me to tell you to get out the car.

Me and Mickery walked around and I saw this dude wearing an Emmit Smith Jersey it was a white Dallas Cowboys Jersey with the stars on it and the number 22 I think it said Smith on the back. He pulled a Tech-9 it was black and it had a silverish color clip, it had thing on the end of the barrel with holes in it. He said 'yall niggers get in hear," He pointed the gun at us, Mickery pulled his Glock but it wasn't cocked so he bailed, he ran around the corner and I didn't see him no more. The guy with the Tech made me go in and sit down in the office. Frank was in the office behind the desk, Little Arnold was next to me on the couch. Dometric Jones was outside near the window with another dude I don't know who he was. The Dude with the tech asked Dometrich if he had his "strap" on, meaning a gun, Dometrich said no, He asked the guy sitting next to Dometrich if he had his the guy said yea I got's mine. Little Arnold was asking frank if he had any more money, and Frank said I give you all I had, the dude with the Tech said "all you had was a pound of weed and twenty-five Dollars" They kept asking Frank for more weed and finally Frank said all I got is six ounces left, it's in the car. Some dude went and got the weed. They told me to get off the couch and go stand by Frank. Little Arnold and the dude with the Tech-9 told me to strip, they told me to take off my shoes and my clothes. Little Arnold drove the car from the back to the front and backed it into the garage near the office where we were. Domitrich opened the Door and the guy with the Tech-9 pointed the gun at us and said get in the car. I got in the back seat first and FRANK got in the front passenger seat. Little Arnold had been sitting in the drivers seat since he had backed the car in. The guy with the Tech got in the back passenger seat right behind Frank. The guy with the Tech-9 pointed the gun at me and told me to bend down. He said "nigger don't look up keep your head down or I'll kill you. I don't know where we were going, we didn't drive more than ten minutes. Little Arnold he told me to get out, the dude with the Tech-9 said no. We drove a little bit more and When we first got into that neighborhood Little Arnold said I'm gonna take you to where I dumped the Last Nigger I killed. I remember we made a right turn. I heard a shot, I saw blood come off Franks neck the guy with the Tech-9 shot frank. Little Arnold said Shoot him in the head, and at the same time he say get out the car. so I bailed, I saw him raise the Tech-9 as I jumped out. the car never stopped rolling. I'm running down the street, I didn't know where I was I trying to get help. I never looked back. I ran towards where I saw some people standing, I told them to call the Police they told me to get out of here, I saw the Whataburger, I saw the access rd and I ran all the way to Southcross, and I ran all the way home to Pennystone. I told my little brother what happened, My brother Christian and me caught the 3:35 bus to Starcrest and I told Larry what happened I don't know Larry's last name. I told him we need to tell his mother. Larry called them, Me Larry's Girlfriend, Larry and my brother got in her car and we drove back to where the shooting happened. I saw all the blood, some people told us they had found a body and the Police had already left. After that we went to Frank's mother's house and waited for the Detectives to call so I could give my statement. I did not hear from the Detective so Larry's girlfriend and Larry drove me to the East Side Sub Station. The Police brought me downtown where I spoke with you.

All I have told you is the truth, I really don't know little Arnold but can identify him if I see a picture of him, I have known Dometrich Jones three years, and I don't know the guy with the Tech-9 but if I see a picture of him I can recognize him. I remember seeing a Tatoo on little arnold that said "Pookie"

I have read this statement and it is the truth.

(All errors included are as they appear in the statement.)

During Taylor's cross-examination, Defense counsel had appellant strip down to his waist to demonstrate the absence of a tatoo which...

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