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Date: 02-28-2021
Case Style:
John Johnson, Jr. v. The State of Texas
Case Number: 11-19-00218-CR
Judge: JIM R. WRIGHT
Court: Eleventh Court of Appeals
Plaintiff's Attorney: Britt Lindsey, Assistant
James Hicks, District Attorney
Defendant's Attorney:
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Description:
Eastland, TX - Criminal defense attorney represented John Johnson, Jr. with a Continuous Sexual Abuse of Young Child or Children charge.
In the first count of a two-count indictment, the grand jury indicted John
Johnson, Jr., Appellant, for the offense of continuous sexual abuse of a child or
children. The grand jury alleged four manner and means by which Appellant
committed the offense of continuous sexual abuse of a child or children: by
committing the offense of aggravated sexual assault by causing the penetration of
2
the female sexual organ of M.J. with Appellant’s male sexual organ; by committing
the offense of sexual assault by causing the penetration of the female sexual organ
of M.J. with Appellant’s male sexual organ; by committing the offense of sexual
assault by causing the penetration of M.J.’s mouth with Appellant’s male sexual
organ; and by committing the offense of indecency with a child by touching the
genitals of I.J.1
The indictment contained two enhancement paragraphs as to this
count in the indictment.
In the second count of the indictment, the grand jury indicted Appellant for
the offense of prohibited sexual conduct. The indictment contained the same two
enhancement paragraphs as to Count Two as in Count One.
Appellant pleaded not guilty to the offense charged in the first count of the
indictment. However, Appellant pleaded guilty to the offense charged in the second
count of the indictment. The jury found Appellant guilty as charged in each count
of the indictment.
Appellant elected to have the trial court assess punishment. The State waived
the two enhancement paragraphs as to the first count of the indictment. Appellant
pleaded true to the enhancement allegations as to the second count of the indictment.
The trial court assessed Appellant’s punishment at imprisonment for thirty-five years
on each count. We affirm the judgments of the trial court.
M.J., one of the victims of sexual abuse, is Appellant’s daughter. The other
victim, I.J., is a female child born to M.J. after Appellant impregnated her.
According to M.J.’s testimony, the events that culminated in the charges in
this case began when she was twelve years old. It was then that Appellant would
1
The acts of sexual abuse set forth are not elements of the offense of continuous sexual abuse of a
child or children; they are evidentiary only and are simply the manner and means by which the actus reus
by which the offense of continuous sexual abuse of a child is committed. Guzman v. State, 591 S.W.3d
713, 730 (Tex. App.—Houston [1st Dist.] 2019, no pet.).
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look through the window into her room. He also bought her an iPod and, in return
for the iPod, told M.J. to put her legs on him. About the same time, he began
touching her hair and giving her massages. Then, beginning when M.J. was a
thirteen-year-old seventh grader, Appellant began to touch her in a sexual way.
M.J. testified that the sexual abuse that she suffered from her father before she
was fourteen years old included these acts by her father: he touched her on her
breasts with his hands; touched her female sexual organ with his hands and his
mouth; and made her touch his male sex organ with her hands and with her mouth.
M.J. did not remember the exact date of each time that Appellant sexually abused
her, but it happened “[p]robably every other day.” It went on “continuously” when
she was thirteen and fourteen years old. The same activities continued until
Appellant stopped when M.J. was seventeen years old, some five years after the
sexual abuse began.
But according to M.J., Appellant later sexually assaulted her one more time
when she was nineteen. At that time, Appellant had sexual intercourse with M.J.
This time, she became pregnant and later gave birth to I.J.
Rachel Burch, a forensic DNA analyst at University of North Texas Center
for Human Identification in Fort Worth, testified that DNA tests that she performed
showed that “at least 99.99999998 percent of the male population is excluded from
the possibility of being the biological father of the child, [I.J.].” She further testified
that it is “150 billion times more likely . . . that [Appellant] is the true biological
father of [I.J.] than if the father is an untested, unrelated, random man from the
African American population.”
M.J. testified that, when I.J. was four years old, M.J. saw her “laying on her
back and . . . massaging her vagina.” M.J. asked I.J. “where she got it from.” I.J.
responded, “Well, Pawpaw does it.” M.J. asked I.J., “What else does he do?” I.J.
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told M.J. that “[h]e touches my nipples.” M.J. testified that at that point, her “heart
just dropped.”
M.J. telephoned her brother Elijah and told him about the accusation that I.J.
had made. She also telephoned Appellant and told him about what I.J. had said.
Appellant denied the allegations and told M.J. to put I.J. on the phone. According
to M.J., Appellant asked I.J., “Pawpaw been touching you?” I.J. replied, “Yes.”
Appellant told I.J., “You know, if you say that, Pawpaw going to go to jail and you’re
not going to see me no more.” I.J. replied, “Okay.”
M.J. took I.J. to the hospital. Officer Chris Volirakis with the Abilene Police
Department was dispatched to the hospital. At the hospital, M.J. told Officer
Volirakis basically the same facts about Appellant’s touching I.J. as M.J. testified to
during the trial. A sexual assault nurse examiner examined I.J. Although the sexual
assault nurse examiner did not note any acute injuries, there was some redness inside
I.J.’s labia minora. The testimony at trial indicated that acute injuries are not
typically found in cases that involve the type of contact involved with I.J. here.
M.J. testified that she posted an account on Facebook about what had
happened to I.J. Appellant and M.J.’s brother Zachary found out about the post and
a confrontation ensued at Appellant’s house. The confrontation was mainly between
Appellant, Zachary, and M.J. At some point during the confrontation, Zachary
“punched” M.J., and M.J. called the police. Officer Zach Hall of the Abilene Police
Department responded to the disturbance call at Appellant’s residence.
Both Officer Volirakis and Officer Hall made reports of the incidents in which
they were involved. Detective Robert Collins, an investigator with the Abilene
Police Department–Special Victims Unit, received those reports and an assignment
to the case a few days after M.J. took I.J. to the hospital.
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Detective Collins arranged for personnel at the Child Advocacy Center to
conduct a forensic interview of I.J. Although I.J. did not make an “outcry” during
the interview, Detective Collins testified that I.J. did identify “her pawpaw, and she
pointed to her genital area.”
During his investigation, Detective Collins discovered that there were two
reports on file with the Abilene Police Department that reflected that the Abilene
Police Department had had prior involvement with the Johnson family. The first of
those reports was made in 2009 when M.J. was thirteen years old. The second report
was made in 2010 and contained similar allegations, “sexual in nature,” against
Appellant. As to each of those reports, M.J. had, at some point, recanted the
allegations. M.J. testified at trial that she recanted at the time because her mother
and Appellant told her that she would have to “go in court” and everyone would find
out. Also, her aunt and uncle accused her of lying and making it all up. “So . . . I
just told [the detectives] I made it up.”
After the forensic interviewer completed her interview with I.J.,
Detective Collins talked with M.J. Detective Collins asked M.J. “point-blank”
whether the allegations in the prior reports were in fact true. M.J. dropped her head,
became upset and very distraught, and began to cry. After Detective Collins gave
M.J. a few minutes, M.J. told Detective Collins that the allegations in the prior
reports were true. Detective Collins testified that M.J. made “it very clear that the
previous allegations were true and [that] they did happen.”
Detective Collins interviewed M.J. again later. She told Detective Collins
that, when she was around thirteen, she lived with Appellant. “She said that he did
things to her sexually frequently.” Those things happened at the residence and at
Appellant’s office building late at night when everyone had left the building.
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John Wayne Johnson, one of M.J.’s brothers, testified at trial. When M.J. was
thirteen years old, John Wayne caught Appellant as Appellant tried to sneak through
the window to M.J.’s room. Just prior to that, Appellant locked M.J.’s door from
the inside and told John Wayne not to bother her because she was grounded.
Appellant then told John Wayne that he was going to take a nap and not to bother
him. During this incident, M.J. sent a text to John Wayne in which she wrote, “He’s
going to try to rape me.” “Please come in. I left the door unlocked for you.” John
Wayne looked out the door and saw Appellant climb out through the window of
Appellant’s own room. John Wayne went to M.J.’s room, opened the door, and saw
Appellant trying to climb through the window into M.J.’s room. M.J. was lying “on
the bed screaming and crying, saying he’s trying to do it to her again, to please call
the cops.”
Appellant came back into the house and said that he was sorry and that it
would never happen again. According to John Wayne, later that night Appellant
took him and his brothers on a drive so that he could “allegedly” apologize to them.
Appellant told them, “I never meant to bring y’all shame.”
Another of M.J.’s brothers, Isaiah Johnson, testified at trial. Isaiah testified
that, on one occasion, M.J. sent a text to him in which she wrote: “He’s taking me
out of class. Could you call the cops, because I think that he’s going to do that
again?” Isaiah dialed 9-1-1, but he hung up before anyone answered. Isaiah testified
to essentially the same facts as John Wayne did about Appellant’s taking the brothers
on the drive to apologize the night after John Wayne caught Appellant climbing out
through the window in Appellant’s room and climbing in through the window to
M.J.’s room.
Isaiah also testified that, when M.J. was thirteen years old, their mother told
him, John Wayne, and another brother, Zachary, that Appellant was sexually
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assaulting M.J. At some point in time, M.J.’s mother had been deported to Mexico
and had lived there since 2014; she did not testify at the trial.
Isaiah also testified that, on one occasion, he had stopped by the house to
check in as they were expected to do. When he knocked and no one answered, he
suspected what was happening. He went to M.J.’s window, looked in, and saw that
M.J. was crying and that their mother was holding M.J. and saying, “Leave her alone.
She’s a child.” Appellant was in the room.
The overarching theme of Appellant’s complaints on appeal is that
Section 21.02 of the Texas Penal Code, the statute by which the legislature
criminalized continuous sexual abuse of a child or children, is unconstitutionally
vague as applied to him. However, trial counsel did not make that challenge at trial.
When a defendant fails to object that a statute is unconstitutionally vague as applied,
he waives appellate review of the complaint. Williams v. State, 305 S.W.3d 886,
893 (Tex. App.—Texarkana 2010, no pet.) (citing Curry v. State, 910 S.W.2d 490,
496 (Tex. Crim. App. 1995)). Therefore, if Appellant had made that direct complaint
on appeal, he would not have preserved the issue for review.
But rather than directly presenting the constitutional argument for review,
Appellant has phrased his first issue on appeal as a complaint about the application
paragraph in the trial court’s charge to the jury. When couched in that manner, and
although no jury charge objections were lodged in the trial court in this case, no
objection is necessary to preserve the jury charge complaint. Kirsch v. State, 357
S.W.3d 645, 649 (Tex. Crim. App. 2012). We must consider a jury charge complaint
regardless of whether an appellant lodged an objection in the trial court. Id. Whether
an appellant lodged an objection in the trial court is important only after we have
found error and begin to assess harm from the error. Id.
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Our review of the complaints that Appellant presents in his third issue on
appeal is akin to our review of the complaint that Appellant raised in his first issue
on appeal in that our review of both will require statutory construction. In his third
issue on appeal, Appellant alleges that his trial counsel rendered ineffective
assistance when counsel failed to object to the jury charge and when counsel failed
to challenge Section 21.02(b) as unconstitutionally vague as applied.
The first issue on appeal, as set forth by Appellant, is: “The trial court’s jury
instruction erroneously applied Section 21.02(b) with respect to the 30-day
‘continuous’ requirement by permitting the submission of two separate victim
offenses when both alleged victims were not under the age of 14 at the same time.”
Basically, Appellant argues that Section 21.02(b) of the Texas Penal Code is
ambiguous in that the meaning of “a period that is 30 or more days in duration” is
indeterminable when applied “to more than one child victim.” Appellant contends
that is so because, when applied to more than one victim, “the duration period is
indeterminable” and therefore ambiguous “when the victims of single assaults are
tied together for the purpose of proving a continuous sexual assault.” The question
is, according to Appellant, that in order to establish the “continuous” element of the
offense when there is more than one victim, “[D]oes Section 21.02(b) require both
children to be under the age of 14 at the same time of the offense or, as the [S]tate
asserts, the assault of any two children under age 14, made at any time, suffices for
proving ‘continuous’ under 21.02(b), provided that the 30-day requirement is met?”
We take Appellant’s stance to be one in which he argues that Section 21.02(b)
of the Texas Penal Code leads to an absurd result and is also ambiguous because it
is subject to more than one meaning (that “one or more victims” means “children inbeing, not children yet to be born”). Thus, Appellant contends, we are called upon
to interpret Section 21.02(b) and, in doing so, will conclude that the statute is
9
ambiguous and calls for an absurd result when there are two or more victims when
both are not “under the age of 14 at the same time of the offense.” All that, Appellant
contends, leads to the conclusion that the trial court improperly charged the jury
when it applied the law to the facts.
The crime with which the State charged Appellant in Count One of the
indictment is continuous sexual abuse of a young child or children as provided for
in Section 21.02(b) of the Texas Penal Code. Section 21.02(b) of the Texas Penal
Code provides:
(b) A person commits an offense if:
(1) during a period that is 30 or more days in
duration, the person commits two or more acts of sexual
abuse, regardless of whether the acts of sexual abuse are
committed against one or more victims; and
(2) at the time of the commission of each of the acts
of sexual abuse, the actor is 17 years of age or older and
the victim is a child younger than 14 years of age,
regardless of whether the actor knows the age of the victim
at the time of the offense.
TEX. PENAL CODE ANN. § 21.02(b) (West 2019).
Statutory construction is a question of law that we review de novo. Sims v.
State, 569 S.W.3d 634, 640 (Tex. Crim. App. 2019); Harris v. State, 359 S.W.3d
625, 629 (Tex. Crim. App. 2011). When we construe a statute, we must “seek to
effectuate the ‘collective’ intent or purpose of the legislators who enacted the
legislation.” Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). We will
first examine the literal text of the statute. McMillian v. State, 388 S.W.3d 866, 871
(Tex. App.—Houston [14th Dist.] 2012, no pet.). “[W]e read words and phrases in
context and construe them according to the rules of grammar and usage.” Harris,
359 S.W.3d at 629 (quoting Lopez v. State, 253 S.W.3d 680, 685 (Tex. Crim. App.
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2008)). We must “presume that every word in a statute has been used for a purpose
and that each word, phrase, clause, and sentence should be given effect if reasonably
possible.” Id. (quoting State v. Hardy, 963 S.W.2d 516, 520 (Tex. Crim. App.
1997)). “Only if the statutory language is ambiguous, or leads to absurd results that
the Legislature could not have possibly intended, may we consult extra-textual
sources.” Id. (citing Boykin, 818 S.W.2d at 785). “If the language of the statute is
plain, we follow that language unless it leads to absurd results that the legislature
could not have possibly intended.” Sims, 569 S.W.3d at 640. A statute is ambiguous
in those situations where reasonable, well-informed persons might understand the
statute to have two or more different meanings. Cortez v. State, 469 S.W.3d 593,
598 (Tex. Crim. App. 2015). We will examine the statute in accordance with these
standards.
First, we will consider the literal text of Section 21.02(b). In Coker, the court
examined Section 21.02(b) in the context of a challenge that the statute was
unconstitutionally vague in all instances and as applied. Coker v. State, No. 12-09-
00331-CR, 2010 WL 5031098, at *3 (Tex. App.—Tyler Dec. 8, 2010, no pet.) (mem.
op., not designated for publication). We find Coker to be persuasive. “This statute,
a collection of already illegal acts, does not, by virtue of its combining nature, create
an admixture that is any more difficult to comprehend than any of its component
parts.” Id. at *2. The court held that the term “30 or more days in duration” was not
difficult to understand. Id. at *3. We are to assume that the legislature meant what
it said. Griffith v. State, 166 S.W.3d 261, 262 (Tex. Crim. App. 2005).
Under the plain language of the statute, the State must prove (1) that during a
period of time that was thirty or more days in duration, (2) the accused committed
two or more acts of sexual abuse, regardless of whether the sexual abuse was
committed against one or more victims, (3) that at the time of the commission of
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each of the acts of sexual abuse the accused was 17 years of age, and (4) that the
victim was a child younger than 14 years of age. PENAL § 21.02(b); Martin v. State,
335 S.W.3d 867, 871–72 (Tex. App.—Austin 2011, pet. ref’d). We believe that the
language of Section 21.02(b) is straightforward and unambiguous and that it does
not lead to an absurd result. The statute clearly provides that a person must not,
during a period of time that is thirty or more days in duration, commit two or more
acts of sexual abuse against one or more victims at a time when the actor is seventeen
years of age or older and the victim is younger than fourteen years of age. If the
legislature wishes to prohibit the tacking of offenses such as those involved in this
case, it may do so, of course. It is not our prerogative to add to or to take anything
away from the statute. McMillian, 388 S.W.3d at 872 (citing Boykin, 818 S.W.2d at
785).
We agree with the courts’ holdings in McMillian and Coker that the language
in Section 21.02(b) is clear and unambiguous. McMillian, 388 S.W.3d at 872; Coker
2010 WL 5031098, at *3. We hold that the trial court charged the jury in accordance
with Section 21.02(b) and did not err when it did. We overrule Appellant’s first
issue on appeal.
As we have said, in his third issue on appeal, Appellant contends that
Appellant’s trial counsel rendered ineffective assistance of counsel because trial
counsel failed to object to the trial court’s erroneous jury charge and because trial
counsel failed to challenge Section 21.02(b) as being unconstitutionally vague. We
have held that the trial court did not err in the application paragraph of the jury
charge. We have likewise held that Section 21.02(b) is neither ambiguous nor does
it lead to an absurd result.
In McMillian, the court declined to hold that Section 21.02 was
unconstitutional as applied. It did so upon the plain language of Section 21.02. The
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language of the statute gives a person of ordinary intelligence fair notice of the
prohibited conduct, and the language also “provides sufficient guidance to law
enforcement personnel that it is not so indefinite that it encourages arbitrary and
discriminatory enforcement.” McMillian, 388 S.W.3d at 874. The statute is neither
ambiguous nor does it lead to an absurd result. Therefore, any objection or challenge
to the contrary would have been useless and futile. Counsel is not required to
perform a useless or futile act. Ex parte Chandler, 182 S.W.3d 350, 356 (Tex. Crim.
App. 2005) (“But a reasonably competent counsel need not perform a useless or
futile act.”); Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991)
(“Counsel is not required to engage in the filing of futile motions.”). Appellant did
not receive ineffective assistance of counsel as complained of by Appellant. We
overrule Appellant’s third issue on appeal.
In his second issue on appeal, Appellant claims that the evidence “is
insufficient to support a finding that Appellant engaged in sexual intercourse with
M.J. when she was under 14 years of age.” We agree. M.J. testified that Appellant
did not begin to have sexual intercourse with her until she was fourteen years old.
We have found no record evidence to the contrary.
However, the indictment contains more than one manner and means by which
Appellant committed the offense of continuous sexual abuse of a child or children.
Appellant has not challenged the sufficiency of the evidence to show that he caused
the penetration of M.J.’s mouth with his male sexual organ when M.J. was under
fourteen years of age as prohibited by Section 21.02(b). Furthermore, Appellant has
not challenged the sufficiency of the evidence to show that he touched I.J.’s genitals
when I.J. was under fourteen years of age, also as prohibited by Section 21.02(b).
Rather, Appellant’s argument is that, with no proof that Appellant penetrated M.J.’s
sexual organ with his sexual organ, and with the removal of the allegation as to
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Appellant’s sexually abusing I.J., there is only one act of sexual abuse. Because,
Appellant argues, the statute requires two or more acts of sexual abuse, the evidence
is insufficient to support a conviction for continuous sexual abuse of a child or
children.
We have held that the allegations as to the sexual abuse of I.J. were properly
included in the trial court’s charge. In the absence of a challenge to the sufficiency
of the evidence as to that manner and means of committing the offense of continuous
sexual abuse of a child or children and in the absence of a challenge to the sufficiency
of the evidence as to Appellant’s sexually abusing M.J. by penetrating her mouth
with his male sexual organ, we overrule Appellant’s second issue on appeal without
further discussion
Outcome: We affirm the judgments of the trial court.
Plaintiff's Experts:
Defendant's Experts:
Comments: