Johnson, Cliffton Javon

PD-0141-15
February 6, 2015
PDR No.

in The Court of Criminal Appeals of Texas

CLIFFTON JAVON JOHNSON, Appellant

v.

THE STATE OF TEXAS, Appellee.

On Appellant's Petition for Discretionary Review
From the Fourteenth Court of Appeals,
Appeal No. 14-14-00053-CR,
On Appeal from the 268th District Court
of Fort Bend County Texas,
Cause No. 13-DCR-063125.

PETITION FOR DISCRETIONARY REVIEW
FOR APPELLANT, CLIFFTON JAVON JOHNSON

Oral Argument Requested

Cary M. Faden
77 Sugar Creek Center Blvd., Suite 230
Sugar Land, Texas 77478
Telephone: (281) 491-6182
Texas Bar No. 06768725
E-MAIL: caryfaden@aol.com

Attorney for Appellant
 Table of Contents

Index ofAuthorities iv

Statement Regarding Oral Argument

Statement of the Case

Procedural History of the Case

Ground for Discretionary Review 2

GROUND ONE

THE FOURTEENTH COURT OF APPEALS ERRED IN
REFUSING TO CONDUCT A HARM ANALYSIS AND TO
APPLY THE LAW IN AFFIRMING APPELLANT'S
CONVICTION.

Reasons to Grant Review in Support of Ground for Review 2

Review is appropriate, under Tex. R. App. P. 66.3(a), because the Court
Of Appeals has rendered a decision, which is in conflict with the
decisions of another court of appeals on the same matter, namely:

Ground One: Brooks v. State, 323 S.W.3d 893,894-95 (Tex. Crim. App.
2010) ; Burden v. State, 55 S.W.3d 608, 612 (Tex. Crim. App. 2001);
Garcia v. State, 367 S.W.3d 683, 688 (Tex. Crim. App. 2012); Jackson
v. Virginia, 443 U.S. 307, 99 S. Ct. 2781.; Lane v. State, 763 S.W.2d
785, 786 (Tex. Crim. App. 1989).

Review is proper, under Tex. R. App. P. 66.3 (b), because the Court Of
Appeals has rendered a decision, which encompasses an important
question of state law, which has not been, but should be, settled by this
Court.

Review is important, under Tex. R. App. P. 66.3(1), because the Court

ii
 Of Appeals has so far departed from the accepted and usual course of
judicial proceedings, as to call for an exercise of this Court's power of
supervision.

Argument And Authorities In Support Of Ground For Review
One 3

Prayer for Relief 8

Certificate of Service 10

Appendix-Fourteenth Court Of Appeals Opinion

iii
 INDEX OF AUTHORITIES

CASES:

Brooks v. State, 323 S.W.3d 893,894-95 (Tex. Crim. App. 2010) ii,2,7

Burden v. State, 55 S.W.3d 608, 612 (Tex. Crim. App. 2001) ii,2,7

Garcia v. State, 367 S.W.3d 683, 688 (Tex. Crim. App. 2012) ii,2,4

Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 ii,2,7

Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989) ii,2,4

STATUES, CODES, AND RULES:

Tex. Penal Code, section 1.07(8) 3

Tex. Penal Code, section 22.04(a) 6

Tex. R. App. P. 66.3(a) ii,2,3

Tex. R. App. P. 66.3(b) ii,2,3

Tex. R. App. P. 66.3(0 ii,2,3

Tex. R. App. P. 68.2 vi

Tex. R. App. P. 68.4(c)

iv
 STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Tex. R. App. P. 68.4(c), counsel respectfully requests oral

argument. Oral argument would be helpful in the event this petition for discretionary

review is granted. This appeal involves questions of law, questions of fact, public

policy and procedure which cannot be adequately addressed, analyzed and evaluated

through written communication alone. Oral argument is essential to emphasize the

unique characteristics of these questions and to address the unforeseeable exigencies

arising during the Court's consideration of this appeal.

STATEMENT OF THE CASE

On May 6, 2013, Cliffton Javon Johnson, Appellant, was indicted in cause

number 13-DCR-063125, for the third degree felony offense of injury to the elderly.

(1 CR at 13). The offense was alleged to have occurred on or about April 21, 2013.

(1 CR at 13). On December 10, 2013, Appellant pleaded not guilty to the indictment.

(3 RR at 6). After a jury trial, the Court assessed Appellant's punishment at

confinement in the Texas Department of Criminal Justice-Institutional Division for

a period of three (3) years, with no fine. (5 CR at 11). On January 7, 2014, Appellant

timely filed his notice of appeal. (1 CR at 50).

PROCEDURAL HISTORY OF THE CASE

On December 23, 2014, the Fourteenth Court of Appeals affirmed Appellant's
conviction. Johnson v. State, No. 14-14-00053-CR, slip op. at 1-4 (Tex. App.—

Houston [14th Dist.], December 23, 2014, pet. pending). On December 31, 2014,

Appellant timely filed his motion for rehearing. The Fourteenth Court ❑f Appeals

overruled and denied Appellant's Motion For Rehearing on January 13, 2015. On

February 1, 2015, Appellant timely filed this Petition For Discretionary Review with

the Clerk of the Court Of Criminal Appeals. TEX. R. APP. P. 4.1 and 68.2.

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 PDR No.

In The Court of Criminal Appeals of Texas

CLIFFTON JAVON JOHNSON, Appellant

v.

THE STATE OF TEXAS, Appellee.

On Appellant's Petition for Discretionary Review
From the Fourteenth Court of Appeals,
Appeal No. 14-14-00053-CR,
On Appeal from the 268th District Court
of Fort Bend County Texas,
Cause No. 13-DCR-063125.

PETITION FOR DISCRETIONARY REVIEW
FOR APPELLANT, CLIFFTON JAVON JOHNSON

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

COMES NOW Appellant, Cliffton Javon Johnson, by and through his attorney

of record, Cary M. Faden, and files this petition for discretionary review of the

December 23, 2014, decision of the Fourteenth Court of Appeals of Texas in Johnson

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v. State, No. 14-14-00053-CR, slip op. at 1-4 ( rex. App. — Houston [14th Dist.],

December 23, 2014, pet. pending); and would respectfully show the Court following:

GROUNDS FOR REVIEW

GROUND ONE

THE FOURTEENTH COURT OF APPEALS ERRED IN
REFUSING TO CONDUCT A HARM ANALYSIS AND TO
APPLY THE LAW IN AFFIRMING APPELLANT'S
CONVICTION.

REASONS TO GRANT REVIEW IN SUPPORT OF GROUNDS FOR REVIEW

Review is appropriate, under Tex. R. App. P. 66.3(a), because the Court
Of Appeals has rendered a decision, which is in conflict with the
decisions of another court of appeals on the same matter, namely:

Ground One: Brooks v. State, 323 S.W.3d 893,894-95 (Tex. Crim. App.
2010) ; Burden v. State, 55 S.W.3d 608, 612 (Tex. Crim. App. 2001);
Garcia v. State, 367 S.W.3d 683, 688 (Tex. Crim. App. 2012); Jackson
v. Virginia, 443 U.S. 307, 99 S. Ct. 2781.; Lane v. State, 763 S.W.2d
785, 786 (Tex. Crim. App. 1989).

Review is proper, under Tex. R. App. P. 66.3 (b), because the Court Of
Appeals has rendered a decision, which encompasses an important
question of state law, which has not been, but should be, settled by this
Court.

Review is important, under TEX. R. APP. P. 66.3(f), because the Court
Of Appeals has so far departed from the accepted and usual course of
judicial proceedings, as to call for an exercise of this Court's power of
supervision.

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 ARGUMENT AND AUTHORITIES IN SUPPORT OF
GROUND FOR REVIEW ONE

In its December 23, 2014, opinion, the Fourteenth Court Of Appeals affirmed

Appellant's conviction in finding the evidence sufficient, but did not conduct any

meaningful analysis, did not apply the law, and refused to conduct a harm analysis.

This Court should review this issue, and review is appropriate, under Tex. R.

App. P. 66.3(a), because the Court Of Appeals has rendered a decision, which is in

conflict with the decisions of another court of appeals on the same matter; and review

is appropriate, under Tex. R. App. P. 66.3 (d), because the Court Of Appeals appears

to have misconstrued a statute, rule, regulation, or ordinance; and review is important,

under Tex. R. App. P. 66.3(f), because the Court Of Appeals has so far departed from

the accepted and usual course of judicial proceedings, as to call for an exercise of this

Court's power of supervision.

The Fourteenth Court Of Appeals stated in its opinion: A person commits the

offense of injury to the elderly if he intentionally, knowingly, recklessly, or with

criminal negligence, engages in conduct that causes to an elderly individual: (1)

serious bodily injury; (2) serious physical or mental deficiency or impairment; (3)

disfigurement or deformity; or (4) bodily injury. Bodily injury is defined as, "physical

pain, illness, or any impairment of physical condition." Tex. Penal Code § 1.07(8).

3
This definition is broadly construed to include "even relatively minor physical

contacts so long as they constitute more than mere offensive touching." Lane v. State,

763 S.W.2d 785, 786 (Tex. Crim. App. 1989)." A fact finder may infer that a victim

actually felt or suffered physical pain because people of common intelligence

understand pain and some of the natural causes of it." Garcia v. State, 367 S.W.3d

683, 688 (Tex. Crim. App. 2012).

The record reflects testimony from the victim and two witnesses that appellant

hit Johnson so hard that Johnson fell to the ground. Johnson testified that his left arm

and hip were injured. The State admitted a photograph ofJohnson showing the injury

to his face. Based on Johnson's testimony, and the jury's view of the photographs

showing Johnson's injury, a rational juror could have concluded that Johnson

suffered bodily injury as a result of appellant striking him. Therefore, we conclude

a rational jury could have found beyond a reasonable doubt that appellant committed

the offense of injury to the elderly. The Fourteenth Court overruled appellant's sole

issue.

It is Appellant's contention that the State called Charlie Johnson, Jr., the

alleged victim in the case, who testified on April 21, 2013, his grandson, Cliffton

Johnson, was living with him at that time. His date of birth is June the 19, 1931, or

82 years old. On April 21, 2013, at some point, Appellant got into an altercation with

4
Patrick his friend. Charlie went outside to see what was going on. He saw Appellant

hit Patrick. He talked to him in the driveway. Appellant told him, "You -- you -- he

said, "You know it's something that -- you ain't did what God told you to do." That's

when he hauled off and hit him. He hit him over the right eye. He fell on his left side.

He scarred up his left arm. He said it hurt. (3 RR at 14-29). Cross examination, he

stated on this day he had been drinking, when his grandson arrived, he was inside the

house. He went outside when he heard the noise, he tried to talk to him, and he got

hit. He did not get medical attention after he was injured. He admitted he did push

Cliffton that day. (3 RR at 29-38).

Appellant testified at trial and said on April 21, he was drinking that day. An

altercation ensued, at some point, his grandfather got hit. He did not intentionally hit

his grandfather. Appellant and his uncle was tussling. His grandfather jumped in

between them and he fell on the ground and hit his head, at that time when he fell,

Appellant was the one that tried to pick him up, and Appellant was punched in the

face by his uncle. (4 RR at 5-14). Cross examination, on April 21, 2013, Appellant

said they attacked him because he was accused of hitting his grandfather when his

grandfather stepped between Appellant and his Uncle Keith. He fell within the tussle,

the scuffle between them. Charlie threw his hands up right in between us. He got right

in between both of them. Appellant said it could have been reckless for him to

5
actually, if he hit his grandfather, it could have been reckless for him to hit his

grandfather. Appellant said, "Yes, yes, it could have been so." (4 RR at 14-43).

Appellant testified at the punishment phase that he accidentally or recklessly

struck his grandfather. The elements of injury to an elderly individual do not require

an intentional or knowing act. See TEX. PEN. CODE ANN. § 22.04(a). Further,

either bodily injury or serious bodily injury satisfies the injury element of the offense.

See id. Appellant challenges on appeal the sufficiency of the evidence to sustain the

element of bodily injury to Charles Johnson. Appellant argues that the evidence is

legally insufficient to support a guilty verdict.

As briefed in a legal sufficiency argument, this Court will view the evidence

in a light most favorable to the State, and therefore do not evaluate the credibility of

witnesses. In this cause, the record shows clearly that Charlie Johnson's testimony

regarding Appellant, the testimony can only be described as confusing, they both

claimed to be unsure of specificity. There was no medical evidence of an assault

presented, there was no physical evidence presented at trial. The jury heard both

Charlie's and Appellant's inconsistent statements. An examination of the evidence

in the light most favorable to the verdict, no rational jury could have found the

elements of the offenses beyond a reasonable doubt.

This Court can not conclude by legally sufficient evidence in this cause that

6
Appellant intentionally and knowingly caused bodily injury to Charles Johnson, a

person over 65 years of age, hereinafter called complainant, by striking him.

The mere fact that the central witness Charlie Johnson's testimony was

confused, inconsistent, with limited memory. Appellant suggests that the State's

investigation was wholly based upon the witnesses lack of credibility. Thus, the

evidence was legally insufficient to find Appellant guilty of injury to an elderly

individual. Brooks v. State, 323 S.W.3d 893,894-95 (Tex. Crim. App. 2010) (plurality

op.); id. at 926 (Cochran, J., concurring). Jackson v. Virginia, 443 U.S. 307, 99 S. Ct.

2781. Burden v. State, 55 S.W.3d 608, 612 (Tex. Crim. App. 2001). Thus, with the

view of all of the evidence in the light most favorable to the verdict to determine

whether the fact finder was rationally justified in finding guilt beyond a reasonable

doubt, the evidence was legally insufficient to find Appellant guilty. Brooks v. State,

323 S.W.3d 893, 894 (Tex. Crim. App.2010) (plurality opinion); id. at 926 (Cochran,

J., concurring). Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781. Burden v. State, 55

S.W.3d 608, 612 (Tex. Crim. App. 2001). This Court should grant this Petition For

Discretionary Review.

Appellant is in dispute with the Fourteenth Court's opinion issued and requests

that this Court consider this Petition For Discretionary Review. Appellant urges this

Petition based upon the fact that this Court attempts to address the issues as briefed.

7
The Court Of Appeals lack of cited case law has departed from the accepted and usual

course of judicial proceedings and the case law cited by Appellant in his Petition For

Discretionary Review, as to call for an exercise of this Court's power of supervision.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Appellant, Cliffton Javon

Johnson, prays that the Court grant the Petition For Discretionary Review for

Appellant, order briefing on this cause, and set it for submission at the earliest

possible date. Moreover, upon submission and review of the appellate record and the

briefs and arguments of counsel, the Court issue an opinion resolving this conflict so

that the bench and bar of this state will know how to address and dispose of similar

issues in the future.

Respectfully submitted,

/s/CARY M. FADEN
Cary M. Faden
SBN 06768725
Counsel for Appellant
77 Sugar Creek Center Blvd., Suite 230
Sugar Land, Texas 77478
Telephone: (281) 491-6182
Facsimile: (281) 491-0049
E-Mail: earyfaden@aol.com

Attorney For Appellant

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 CERTIFICATE OF COMPLIANCE, T.R.A.P., RULE 9.4(3)

In accordance with TEX. R. APP. P. 9.4(3), I Cary M. Faden, certify that this

is a computer generated document and I state that the number of words in this

document is approximately 2,630 words. I am relying on the word count of the

computer program used to prepare this document.

/s/CARY M. FADEN
Cary M. Faden

CERTIFICATE OF SERVICE

In accordance with Tex. R. App. P. 9.5, I, Cary M. Faden, certify that a true and

correct copy of the foregoing Petition For Discretionary Review has been served, by

U.S. Mail, upon Cliffton Javon Johnson, to the attorney for the State Of Texas, John

F. Healey, Jr., District Attorney, Appellate Division, 301 Jackson Street, Room 101,

Richmond, Texas 77469, to the State Of Texas Prosecuting Attorney, Lisa C.

McMinn, P. O. Box 13046, Captiol Station, Austin, Texas 78711 on this the 1st day

of February, 2015.

/s/CARY M. FADEN
Cary M. Faden

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 December 23, 2014

JUDGMENT

IFourterlitil (Court of Appeab3
CLIFFTON JAVON JOHNSON, Appellant

NO. 14-14-00053-CR V.

THE STATE OF TEXAS, Appellee

This cause was heard on the transcript of the record of the court below.
Having considered the record, this Court holds that there was no error in the
judgment. The Court orders the judgment AFFIRMED.
We further order appellant pay all costs expended in the appeal.
We further order this decision certified below for observance.
Affirmed and Memorandum Opinion filed December 23, 2014.

In The

Nuurteent11 (Court of Apprills

NO. 14-14-00053-CR

CLIFFTON JAVON JOHNSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Cause No. 13-DCR-063125

MEMORANDUM OPINION

Appellant Cliffton Javon Johnson appeals his conviction for injury to the
elderly. In a single issue, appellant argues the evidence is insufficient to sustain the
element of bodily injury to the complainant. We affirm.

BACKGROUND

Appellant's grandfather, Charlie Johnson, testified that he is 82 years old.
On the date of the offense Johnson was visiting his daughter's house when
appellant and a friend named Patrick Smith came to Johnson's daughter's house.'
Johnson saw appellant hit Smith, and attempted to break up the fight by talking
with appellant. Appellant and Johnson exchanged cross words, and appellant hit
Johnson so hard that Johnson fell to the ground injuring his left hip, left arm, and
cutting his face near his eye. Johnson's daughter also attempted to intervene, but
appellant assaulted her.

Smith testified that appellant was taking PCP on the day of the offense.
Smith saw appellant hit Johnson and knock him down, and also saw appellant hit
his mother. Appellant's mother also testified to the assault on Johnson.

Appellant testified that he had not taken PCP on the day of the offense, but
had drunk two 24-ounce beers. Appellant said he did not intentionally hit Johnson,
but that Johnson jumped into an altercation between appellant, Smith, and
appellant's "Uncle Keith."

One of Johnson's granddaughters testified that she had asked Johnson to
sign an affidavit stating that appellant had not intentionally assaulted him. The
granddaughter wrote out the language, which read, "I do not believe my grandson,
Clifton Jovan [sic] Johnson, intentionally hit me during an altercation at my
daughter's home in April 2013. My grandson is not a harmful person, and I am
certain he did not strike me knowingly and intentionally." Johnson testified that he
remembered signing an affidavit, but the document he signed did not contain that
language.

ANALYSIS

In a single issue appellant challenges the sufficiency of the evidence to
support his conviction. Specifically, he challenges the sufficiency of the evidence

1 Johnson's daughter is appellant's mother.

2
to sustain the element of bodily injury to Johnson.

When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict and determine, based on that evidence and
any reasonable inferences therefrom, whether a rational jury could have found 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
(1979)). In making this review, an appellate court considers all evidence in the
record, whether it was admissible or inadmissible. Winfrey v. State, 393 S.W.3d
763, 767 (Tex. Crim. App. 2013).

We may not substitute our judgment for that of the jury by reevaluating the
weight and credibility of the evidence. Brooks v. State, 323 S.W.3d 893, 900 (Tex.
Crim. App. 2010). We defer to the jury's responsibility to resolve any conflicts in
the evidence fairly, weigh the evidence, and draw reasonable inferences. Id. The
jury alone decides whether to believe eyewitness testimony, and it resolves any
conflicts in the evidence. Id. In conducting a sufficiency review, we do not engage
in a second evaluation of the weight and credibility of the evidence, but only
ensure the jury reached a rational decision. Young v. State, 358 S.W.3d 790, 801
(Tex. App.—Houston [14th Dist.] 2012, pet. ref d).

A person commits the offense of injury to the elderly if he intentionally,
knowingly, recklessly, or with criminal negligence, engages in conduct that causes
to an elderly individual: (1) serious bodily injury; (2) serious physical or mental
deficiency or impairment; (3) disfigurement or deformity; or (4) bodily injury.
Bodily injury is defined as, "physical pain, illness, or any impairment of physical
condition." Tex. Penal Code § 1.07(8). This definition is broadly construed to
include "even relatively minor physical contacts so long as they constitute more
than mere offensive touching." Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim.

3
App. 1989). "A fact finder may infer that a victim actually felt or suffered physical
pain because people of common intelligence understand pain and some of the
natural causes of it." Garcia v. State, 367 S.W.3d 683, 688 (Tex. Crim. App.
2012).

The record reflects testimony from the victim and two witnesses that
appellant hit Johnson so hard that Johnson fell to the ground. Johnson testified that
his left arm and hip were injured. The State admitted a photograph of Johnson
showing the injury to his face. Based on Johnson's testimony, and the jury's view
of the photographs showing Johnson's injury, a rational juror could have
concluded that Johnson suffered bodily injury as a result of appellant striking him.
Therefore, we conclude a rational jury could have found beyond a reasonable
doubt that appellant committed the offense of injury to the elderly. We overrule
appellant's sole issue.

The trial court's judgment is affirmed.

/s/ Ken Wise
Justice

Panel consists of Justices Christopher, Donovan, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).

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