Johnson v. State

• Decision Date: 25 May 2016
• Docket Number: NO. PD–1496–14,PD–1496–14
• Parties: Joe Dale Johnson, Appellant, v. The State of Texas.
• Court: Texas Court of Criminal Appeals

490 S.W.3d 895

Joe Dale Johnson, Appellant,

v.The State of Texas.

NO. PD–1496–14

Court of Criminal Appeals of Texas.

DELIVERED: May 25, 2016

Todd Greenwood, Jeffrey Lewis Eaves, Wichita Falls, for Appellant.

Lisa McMinn, State's Attorney, Austin, Carey Jensen, John Gillespie, Assistant District Attorneys, Wichita Falls, for the State of Texas.

OPINION

Richardson

, J., delivered the opinion of the Court in which Meyers, Johnson, Alcala, and Yeary, JJ., joined.

Appellant, Joe Dale Johnson, was convicted of two counts of aggravated sexual assault of a child and sentenced to life imprisonment on each count. On direct appeal, Johnson claimed that the trial court erred in excluding evidence of the victim's past sexual behavior. Johnson argued that this evidence was relevant to his defense of fabrication, that excluding this evidence violated his right of confrontation,¹ and that it was admissible under the Texas Rules of Evidence.² The Second Court of Appeals held that the trial court did not abuse its discretion in excluding such evidence and affirmed Johnson's conviction. We hold that the proffered cross-examination by Johnson's counsel should have been permitted. We reverse the decision of the court of appeals and remand the case to that court for a harm analysis under Texas Rule of Appellate Procedure 44.2(a)

.

FACTUAL BACKGROUND

Appellant, Joe Dale Johnson, was a board member at the church where the victim, H.H., and his family attended. Johnson also ran the sound board and the projector in the church sanctuary and helped with the youth group. Some time in late 2006, when H.H. was twelve, Johnson started spending time with H.H. Over the next few months, Johnson had H.H. to his house, took H.H. to movies, hockey games, and out to eat.

Just after H.H.'s thirteenth birthday, in late May or early June of 2007, Johnson asked H.H. to mow his lawn. He and H.H. were alone together at Johnson's house. According to H.H.'s version of events, the two of them were sitting on Johnson's couch, and Johnson reached over and started touching H.H.'s stomach. Johnson then asked to see H.H.'s penis. H.H. complied because he felt indebted to Johnson for all the time Johnson spent with him taking him to movies and hockey games. H.H. said that Johnson then showed him “some pornography that he had downloaded to his computer.” H.H. admitted this was not the first time he had seen pornography. Johnson persuaded H.H. to allow Johnson to perform oral sex on H.H. Johnson instructed H.H. to reciprocate, which H.H. did “for five seconds” but stopped “because [H.H.] didn't like it.” After this happened, H.H. and Johnson finished mowing Johnson's lawn. Johnson paid H.H. $50 and took him to Walmart, where H.H. said that he spent the money that Johnson gave him “for mowing his lawn and doing the sexual [acts].” Afterwards, Johnson took H.H. to eat at Hunan's restaurant.

In the fall of 2007, Johnson gave H.H. a Nintendo DS gaming system and told him “that if anyone asked, it was donated to the church.” However, the teen group leader, “Jimmy,” told H.H. that he didn't want the teen group to have the Nintendo DS because it would cause conflict in the church between the teen group and the younger kids. The pastor of the church took the Nintendo DS, and H.H. testified that he was upset because he did not get the Nintendo DS that Johnson had promised him.

A note that H.H. wrote to Johnson, but never delivered, was admitted into evidence. The note stated,

You want to know your benefits? They are as follows: Secret keeper, lying to my parents and my friendship. So if you don't want to give it to me, don't. I don't care.

H.H. said that he wrote the note because, at the time that he asked Johnson for the Nintendo DS, Johnson asked H.H. what was H.H. going to give Johnson (thus, the reference to “your benefits”). H.H. said that he wasn't going to do anything else to, or for, Johnson, so H.H. wrote Johnson the note to clarify Johnson's “benefits.” H.H. testified that he “was pretty angry because [Johnson] wanted [H.H.] to do more stuff for him.” Some time just after the incident with the Nintendo DS, H.H.'s parents told him that he shouldn't see Johnson anymore because they were afraid that something was happening.

In November of 2007, H.H. decided to tell Jimmy, the teen group leader, about the sexual assault. According to H.H.'s testimony,

[A]fter the DS wasn't allowed to come to the teen group, I was at first pretty angry that I didn't get the DS like I wanted, but then I got to thinking about it and then I thanked Jimmy for not letting us have it. That was the teen leader that didn't allow it to come through. And I told him that I was thankful for it and he said that—why are you glad that that didn't happen? I said, well, let's just say I can't tell you. And he said, well, that sounds a lot like something that happened to me.

H.H. said that after he told Jimmy he “felt better, like a weight off [his] shoulders.” Jimmy then told H.H.'s parents about the outcry, and H.H.'s parents reported it to the police.³ Johnson was arrested on December 6, 2007.

PROCEDURAL BACKGROUND

A. Before Trial

During a pretrial hearing in October of 2009,⁴ Johnson's defense counsel announced to the trial judge that the State had just disclosed to the defense that “the alleged victim ... has been adjudicated for some sort of sexual offense. And this was the first we've heard of it.” Johnson's counsel argued that this was Brady evidence and that he wanted to be able to impeach the victim with it. The State responded, in part, that juvenile adjudications were not admissible for impeachment. The prosecutor represented that it wasn't until “months” after the date of this offense that H.H. was caught and placed in the juvenile system on a juvenile felony sexual adjudication. At that pretrial hearing, the juvenile file was sealed, and no one appeared to know the details of the sexual offense charges that had been brought against H.H.

When Johnson's counsel asked the prosecutor if the acts, for which H.H. was ultimately adjudicated, occurred before or after the outcry against Johnson, the prosecutor replied that “some of those occurred ... before the accusation came out against Mr. Johnson.” Johnson's defense counsel insisted that, if the victim “did those certain acts prior to this, then he knows those acts are wrong and then he can make false allegations against Mr. Johnson.” Although it is not clear when the prosecutors learned of the sexual assault allegation against H.H., there is nothing in the record suggesting that the State had knowledge of it when H.H. made his outcry or when Johnson was arrested in this case. In fact, it appears that the State's awareness and involvement in the sexual abuse case against H.H. was sandwiched in between the outcry and the trial in this case. H.H.'s status as an alleged juvenile sex offender appears to have arisen after Johnson was arrested (December 6, 2007), and was concluded before Johnson was tried (June 13, 2011). Because the records from the juvenile offense were sealed, the trial court granted Johnson's motion for a continuance so that, once the juvenile records were unsealed, the parties could review them.

Almost two years later, on June 9, 2011, the parties reconvened before the trial court for another pretrial hearing. The parties and the trial court had reviewed the victim's juvenile record, which reflected that, in May of 2008, H.H. was charged with sexually assaulting his younger sister some time in April of 2008.⁵ On July 18, 2008, the juvenile court “defer[red] its decision on registration requirement until juvenile has completed an approved sex offender treatment as a condition of probation or commitment to the Texas Youth Commission.” In July of 2010, H.H.'s probation was discharged. Johnson's counsel requested that he be allowed to impeach H.H. with evidence of H.H.'s juvenile adjudication. In response, the State argued that there were “no more strings attached” to H.H., and that nothing was being “held over” H.H. at that time. The State's argument is consistent with the time line of events:

Summer 2007 Sexual contact allegedly occurred between Johnson & H.H.

November 2007 H.H. made outcry December 2007 Johnson arrested and charged with this offense

May 2008 H.H. charged as a juvenile with sexually assaulting his sister in April of 2008

July 2008 H.H. placed on juvenile probation in his case

October 2009 Pretrial hearing in Johnson's case where State disclosed H.H.'s juvenile sexual offense

July 2010 H.H.'s juvenile probation discharged

June 2011 Trial began in Johnson's case

The trial court judge decided that the outcry in this case, which was in November of 2007, “was made well before the allegation of charges against the juvenile in a totally unrelated matter.” He ruled that he would not allow the defense to get into those matters because he determined that they were not relevant to this case. The trial court judge also stated that, “by law a juvenile cannot give consent to any sexual activity. So with that being the case, then as it stands now, I'm not—I'm not going to allow the parties to get into sex acts unrelated to those with Mr. Johnson.”⁶

There was nothing contained in the pretrial record in this case, in the context of H.H.'s juvenile case, suggesting that H.H. had been sexually abusing his sister for a number of years. That information did not come to light until the trial when H.H. testified outside the jury's presence.

B. The Trial

1. What the jury did and did not hear from H.H.'s father

Trial began June 14, 2011. H.H.'s father was the State's first witness. H.H.'s father provided much of the factual background noted above regarding how H.H. and Johnson met.

Defense counsel asked the trial judge if he could question H.H.'s father about H.H.'s emotional state during the fall of 2007. The trial judge excused the jury so that he could evaluate whether the evidence that Johnson's counsel sought to elicit from H.H.'s father was admissible. Outside...