ACCEPTED
06-14-00214-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
2/24/2015 11:55:56 AM
DEBBIE AUTREY
CLERK
No. 06-14-00214-CR
____________________________________________
RECEIVED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
IN THE 2/24/2015 11:55:56 AM
DEBBIE AUTREY
SIXTH COURT OF APPEALS Clerk
AT TEXARKANA, TEXAS
____________________________________________
EX PARTE: RAY LOUIS JOHNSON, JR.
____________________________________________
APPEAL FROM
TH
THE 8 DISTRICT COURT OF HOPKINS COUNTY, TEXAS
TRIAL COURT NOS. 0317178, 0317179 & 0317180
____________________________________________
APPLICANT’S BRIEF
____________________________________________
Wade A. Forsman
P.O. Box 918
Sulphur Springs, TX 75483-0918
903.689.4144, f. 903.689.7001
wade@forsmanlaw.com
Attorney for Applicant
Ray Louis Johnson, Jr.
ORAL ARGUMENT REQUESTED
Applicant’s Brief
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Texas Rule of Appellate Procedure 38(a), the following is a list of all
parties to the trial court’s order made the basis of this applicant, as well as the names
and addresses of all trial and appellate counsel:
Applicant Applicant’s appellate counsel
Ray Louis Johnson, Jr. Wade A. Forsman
P.O. Box 918
Sulphur Springs, TX 75483-0918
903.689.4144 telephone
903.689.7001 facsimile
wade@forsmanlaw.com
Applicant’s trial counsel
Roland M. “Ron” Ferguson, Jr.
1804 Woodbridge Drive
Sulphur Springs, TX 75482
903.335.8412 telephone
The State of Texas State’s trial & appellate counsel
Hopkins County District Attorney
ATTN: Will Ramsay1
114 Main Street
Sulphur Springs, TX 75482
903.885.0641 telephone
903.885.0640 facsimile
willramsay@suddenlinkmail.com
1
The District Attorney on October 31, 2003 was Mr. Frank Long. He is now in private practice
Applicant’s Brief Page i
TABLE OF CONTENTS
Identity of Parties and Counsel ……………………………………………………. i
Table of Contents ……………………………………………………………….. iii
Index of Authorities ………………………………………………………………. v
Statement of the Case …………………………………………………………….. 1
Issue Presented …………………………………………………………………... 2
POINT OF ERROR NO. 1: The trial court abused its discretion by
failing to conduct a full evidentiary hearing on Applicant’s assertion
that his guilty plea on a first-degree felony was not made competently
because he was under the influence of a controlled substance pursuant
to instructions from a health care provider.
Statement of Facts ……………………………………………………………….. 3
Standard of Review……...…………………………………………………………7
Argument …………………………………………………………………............. 8
I. Ex Parte Whistance – A Case with Similar Facts………………………….. 8
II. Ex Parte Whistance -- The Trial Court There Responds Differently
Than the Trial Court Here …………………………………………………..9
Prayer ……………………………………………………………………………..11
Certificate of Word Count ………………………………………………………..12
Certificate of Service……………………………………………………………...12
Applicant’s Appendix – List of Documents …………………………………….. 13
Applicant’s Brief Page ii
INDEX OF AUTHORITIES
Cases
Avery v. State,
359 S.W.3d 230 (Tex. Crim. App. 2013) …………………………………….3
Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241 (Tex. 1985),
cert. denied, 476 U.S. 1159 (1985) …………………………………………11
Ex Parte Resendiz,
06-14-00170-CR,
2015 Tex. App. LEXIS 191 (Tex. App. – Texarkana Jan. 13, 2015) ……..7, 8
Ex parte Villanueva,
252 S.W.3d 391 (Tex. Crim. App. 2008) ……………………………………8
Ex Parte Whistance,
No. 02-07-280-CR,
2007 Tex. App. LEXIS 7937 (Tex. App. – Fort Worth, Oct. 4, 2007),
pet. discretionary review refused,
2008 Tex. Crim. App. LEXIS 349 (Tex. Crim. App. March 5, 2008) ……8, 9
Forrest v. State,
805 S.W.2d 462 (Tex. Crim. App. 1991) …………………………………...11
State v. Wilson,
324 S.W.3d 595 (Tex. Crim. App. 2010) ………………………………….11
Statutes
TEX. CODE CRIM. P. art. 11.072 ……………………………………………………9
Court Rules
Tex. R. App. P. 9.4(i)(3) ………………………………………………………… 12
Applicant’s Brief Page iii
TEX. R. APP. P. 38(a) ……………………………………………………………… i
Applicant’s Brief Page iv
No. 06-14-00214-CR
____________________________________________
IN THE
SIXTH COURT OF APPEALS
AT TEXARKANA, TEXAS
____________________________________________
EX PARTE: RAY LOUIS JOHNSON, JR.
____________________________________________
APPEAL FROM
TH
THE 62 DISTRICT COURT OF HOPKINS COUNTY, TEXAS
TRIAL COURT NOS. 0317178, 0317179 & 0317180
____________________________________________
APPLICANT’S BRIEF
____________________________________________
STATEMENT OF THE CASE
The Applicant, Ray Louis Johnson, Jr., appeals the order titled Order Denying Relief
Pursuant to Section 11.072, TCCP, and Issuance of Findings of Fact and
Conclusions of Law, issued by the trial court, the Honorable Will Biard presiding,
on November 17, 2014 (“Order”).
Applicant’s Brief Page 1
ISSUES PRESENTED
POINT OF ERROR NO. 1: The trial court abused its discretion by
failing to conduct a full evidentiary hearing on Applicant’s assertion
that his guilty plea on a first-degree felony was not made competently
because he was under the influence of a controlled substance pursuant
to instructions from a health care provider.
Applicant’s Brief Page 2
STATEMENT OF FACTS
***The following facts are taken from the file of the trial court***
On October 30, 2003, the Applicant, Ray Louis Johnson, Jr. (“Johnson”), was
seen by Dr. Richard T. Rehnquist, DDS, in Mount Vernon, Texas (App. 16). Johnson
did not do this on his own. That is because Johnson was in the custody of the Hopkins
County Sheriff’s Office (“HCSO”) at the time (App. 22), and it was HCSO that took
Johnson to see Dr. Rehnquist.
Dr. Rehnquist performed oral surgery on Johnson (App. 16, 16, 22). After the
surgery, Dr. Rehnquist prescribed hydrocodone for Johnson (App. 15, 22).
Hydrocodone is a Schedule II controlled substance.2 Johnson also prescribed
promethazine (25 mgs)(App. 22).3
The following morning, HCSO brought Johnson to the courtroom in Sulphur
Springs of the 8th Judicial District Court of Hopkins County, Texas, the Honorable
Robert Newsom presiding. A bench trial was set for that day and time, i.e., the
morning of October 31, 2003 (App. 22), and Johnson was the defendant, for he had
been charged with aggravated sexual assault of a child, a first-degree felony.
2
See Avery v. State, 359 S.W.3d 230, 234 (Tex. Crim. App. 2013).
3
Promethazine is not a controlled substance in and of itself.
Applicant’s Brief Page 3
Johnson was still under the influence of medication, including hydrocodone,
on the morning of October 31, 2003 when he entered the courtroom (App. 23). That
is because in compliance with Dr. Rehnquist’s instructions, Johnson was ingesting
a 10 mg pill of hydrocodone every four hours, and he was taking promethazine (25
mgs) once per day. For that reason Johnson ingested a 10 mg pill of hydrocodone
thirty (30) minutes before the commencement of trial (App. 22).
Judge Newsom noticed Johnson’s impaired condition, and he asked Johnson’s
trial counsel, Mr. Ron Ferguson, if Johnson was “alright” (App. 23, 24). In response
to this query, Johnson interrupted and personally informed the trial judge of his oral
surgery the day before (App. 23, 24).
It was on this same day, i.e., October 31, 2003, when Johnson pleaded guilty
to aggravated sexual assault of a child (App. 04, 05). Following Johnson’s plea of
guilty, the trial court sentenced Johnson to ten years of deferred probation (App. 06).
Johnson did not successfully complete his deferred probation. On February
21, 2005, and in response to the first amended motion to proceed with adjudication,4
the trial court adjudicated Johnson guilty of the offense of sexual assault of a child
(App. 09, 10). The trial court then sentenced Johnson to confinement for 40 years
with the Texas Department of Criminal Justice (“TDCJ”)(App. 09, 10).
4
The State filed this on January 24, 2005.
Applicant’s Brief Page 4
Since that time Johnson has repeatedly challenged the validity of the guilty
plea he entered on October 31, 2003. On April 5, 2007, Johnson wrote the following
to the trial court:
When I signed for the initial plea . . . I was under the influence of pain
medication that prevented voluntary and knowing intelligence [sic] of
the pains and penaltis [sic] . . . thereof. . . . (App. 12)
On July 2, 2010, Johnson filed pro se what he titled a “motion to withdraw guilty
plea” in which he wrote the following:
When the guilty plea was obtained by the State on October 31, 2003,
[I] was unable to properly consider the consequences and serious nature
of the proceedings, as [I] was under the influence of hydrocodone . . .
[I] had been prescribed hydrocodone as treatment for oral surgeon [sic]
by Dr. Rehnquist. (App. 15, 16).
Finally, on May 15, 2014, Johnson filed the present application for a writ of habeas
corpus, which he has brought pursuant to article 11.072 of the Texas Code of
Criminal Procedure (App. 21). In that document, as with his prior documents,
Johnson avers that he did not make his guilty plea on October 31, 2003 competently
because of the hydrocodone he had ingested, for a legitimate medical purpose, in
compliance with Dr. Rehnquist’s orders. In that application Johnson also avers that
Ferguson, his trial attorney, provided him with ineffective assistance of counsel.
Applicant’s Brief Page 5
Johnson’s article 11.072 application found its way back to the trial court –
specifically, the 62nd Judicial District Court, the Honorable Will Biard presiding.5
On November 17, 2014, Judge Biard entered an order titled Order Denying Relief
Pursuant to Section 11.072, TCCP, and Issuance of Findings of Fact and
Conclusions of Law (“Order”)(App. 31). In the Order Judge Biard made the
following findings of fact:
1. On October 31, 2003, [Johnson’s] trial counsel [i.e., Ferguson]
affirmatively represented that [Johnson] was competent and
understood the proceedings (Written Plea Admonishments).
2. The trial judge, Honorable Robert Newsom, was best suited to
determine [Johnson’s] competency at the time his plea was
entered on October 31, 2003.
3. On October 31, 2003, at the time [Johnson’s] plea was entered
and accepted, the trial judge, Honorable Robert Newsom, made
a finding of fact that Applicant was competent. (Written Plea
Admonishments).
4. On February 21, 2005, [Johnson] pled [t]rue to the allegations
contained in the State’s Motion to Proceed with Adjudication.
Again on February 21, 2005, [Johnson] confessed that at the
time of his plea on October 31, 2003, he was the same person
that pled guilty, that he understood the consequences of his plea,
and that he read and understood the terms and conditions of his
probation.
5
The current judge for the 8th Judicial District Court is now the Honorable Eddie Northcutt.
Johnson’s application was transferred to the 62nd Judicial District Court from the 8th Judicial
District because prior to taking the bench Judge Northcutt had represented Johnson, albeit briefly,
in connection with a motion to proceed.
Applicant’s Brief Page 6
Judge Biard then made the following conclusion of law:
1. Applicant was competent at the time his plea was entered on
October 31, 2003.
2. Applicant fully understood the consequences of his plea and
placement on deferred adjudication.
3. Applicant did not raise the issue of competency at the time he
pled true to the State’s Motion to Proceed with Adjudication on
February 21, 2005.
4. As this Court has determined that Applicant was competent at
the time of his plea, the Court further finds that Applicant’s trial
counsel was not ineffective.
For the Court’s convenience, a true and correct copy of the Order is attached. (App.
31). According to Order, Judge Biard entered the foregoing findings and conclusions
“[a]fter reviewing the files[.]”
STANDARD OF REVIEW
The standard of review is abuse of discretion. Ex Parte Resendiz, 06-14-
00170-CR, 2015 Tex. App. LEXIS 191, *2 (Tex. App. – Texarkana Jan. 13, 2015)
(citing cases).
Applicant’s Brief Page 7
ARGUMENT
POINT OF ERROR NO. 1: The trial court abused its discretion by
failing to conduct a full evidentiary hearing on Applicant’s assertion
that his guilty plea on a first-degree felony was not made competently
because he was under the influence of a controlled substance pursuant
to instructions from a health care provider.
Johnson attacks the validity of the guilty plea he made on October 31, 2003
while he was still recovering from oral surgery. Such an attack is permitted by Ex
parte Villanueva, 252 S.W.3d 391, 395 (Tex. Crim. App. 2008), followed in Ex Parte
Resendiz, 06-14-00170-CR, 2015 Tex. App. LEXIS 191, *3 (Tex. App. – Texarkana
Jan. 13, 2015) (citing cases). Johnson’s subsequent adjudication and resultant
incarceration in February 2005 are not valid because when Johnson entered his guilty
plea on October 31, 2003 he was still under the influence of hydrocodone and
promethazine, which he was taking in compliance with the orders of a health care
provider – namely, Dr. Rehnquist.
I. Ex Parte Whistance – A Case with Similar Facts
The Court of Appeals in Fort Worth considered a case with similar
background facts. See Ex Parte Whistance, No. 02-07-280-CR, 2007 Tex. App.
LEXIS 7937 (Tex. App. – Fort Worth, Oct. 4, 2007), pet. discretionary review
refused, 2008 Tex. Crim. App. LEXIS 349 (Tex. Crim. App. March 5, 2008). In that
Applicant’s Brief Page 8
case the defendant, Ms. Brandi Nicole Whistance, pleaded guilty to a felony,6 for
which she was placed on deferred probation. Id. at *1. A little over a year later, the
State filed a motion to adjudicate, after which Whistance ultimately filed an
application for a writ of habeas corpus pursuant to article 11.072 of the Texas Code
of Criminal Procedure. Id. at **1-2.
In her application, Whistance averred that she had been under the influence of
a controlled substance, methamphetamines, when she pled guilty, and that "but for
[her] being under the influence of methamphetamines . . . [she] would never have
pled guilty." Id. at *3. Indeed, the Fort Worth Court of Appeals noted that Whistance
had tested positive for that substance on the very same day when she pleaded guilty.
Id. at *3.
II. Ex Parte Whistance -- The Trial Court There Responds Differently
Than the Trial Court Here
The trial court in Whistance did more than review Whistance’s plea papers.
Instead, the trial court in Whistance responded to Whistance’s application under
article 11.072 in the following three ways.
First, the trial court in Whistance reviewed two affidavits – one from the judge
who heard Whistance’s plea, and another from Whistance’s attorney at the time
6
The felony was forgery of a financial instrument.
Applicant’s Brief Page 9
when Whistance pleaded guilty. Id. at *4. The Court in Whistance also considered
expert evidence offered by the State showing that a positive urinalysis for
methamphetamine is not necessarily the same as being under the influence of
methamphetamine. Id. at **8-9. Finally, the trial court in Whistance considered
evidence offered by the State which showed that at the time of Whistance’s plea no
one in the courtroom had witnessed any behavior by Whistance that would have
indicated she was under the influence of methamphetamine. Id. at *9.
The trial court in the present case did none of these things. It neither
sought nor reviewed any evidence, affidavit or live, from Judge Newsom. It neither
sought nor reviewed any evidence, affidavit or live, from Ferguson. It neither sought
nor reviewed any dental records or live testimony from Dr. Rehnquist. Unlike
Whistance, it neither sought nor reviewed any evidence from experts – this case
about the degree of impairment, if any, that normally results from having oral
surgery 24 hours earlier, or about the degree of impairment that normally results
from taking pain medication like a 10 mg pill of hydrocodone every four hours.
There is no evidence the trial court here ever bothered to seek, much less
review, the jail records from the HCSO to see if Johnson had indeed been prescribed
10 mg of hydrocodone from a health care provider like Dr. Rehnquist. Certainly, the
Applicant’s Brief Page 10
trial court in the present case made no effort to bench warrant Johnson and obtain
evidence from him directly.
Instead, the trial court in this case states in the Order what it did do, and it is
not much. According to the Order, the trial court “review[ed] the files.” Nothing
else.
That is not enough. Relying on written plea admonishments, without more,
does not constitute an inquiry that justifies entering any of the findings of fact and
conclusions of law contained in the Order. Indeed, to enter such findings and
conclusions solely on this basis of “reviewing the files” constitutes an abuse of
discretion. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.
1985) (The test for determining whether a trial court abuses its discretion is whether
it acted without reference to any guiding rules or principles), cert. denied, 476 U.S.
1159 (1985), cited in State v. Wilson, 324 S.W.3d 595, 597, fn. no. 4 (Tex. Crim.
App. 2010), and Forrest v. State, 805 S.W.2d 462, 464 (Tex. Crim. App. 1991).
PRAYER
WHEREFORE, Applicant, Ray Louis Johnson, Jr. asks this Court to reverse
the order of the trial court, titled Order Denying Relief Pursuant to Section 11.072,
TCCP, and Issuance of Findings of Fact and Conclusions of Law, dated November
17, 2014, and remand this matter back to the trial court with instructions that it
Applicant’s Brief Page 11
conduct a full evidentiary hearing on Applicant’s assertion that his guilty plea on
October 31, 2003 was not made competently because he was under the influence of
a controlled substance pursuant to instructions from a health care provider, and/or
for such other and further relief to which Johnson may establish himself entitled.
Respectfully submitted,
By: __/s/ Wade A. Forsman_
Wade A. Forsman
State Bar No. 07264257
P.O. Box 918
Sulphur Springs, TX 75483-0918
903.689.4144 East Texas
972.499.4004 Dallas/Fort Worth
903.689.7001 Facsimile
wade@forsmanlaw.com
Attorney for Applicant
Ray Louis Johnson, Jr.
CERTIFICATE OF WORD COUNT
Pursuant to Tex. R. App. P. 9.4(i)(3), this document contains 2,805 words.
__/s/ Wade A. Forsman_
Wade A. Forsman
CERTIFICATE OF SERVICE
This is to certify that on February 24, 2015, I served a true and correct copy
of the above and foregoing Applicant’s Brief by email on Will Ramsay, District
Attorney, at 114 Main Street, Sulphur Springs, Texas 75482.
__/s/ Wade A. Forsman_
Wade A. Forsman
Applicant’s Brief Page 12
Nos. 06-14-00214-CR
____________________________________________
IN THE
SIXTH COURT OF APPEALS
AT TEXARKANA, TEXAS
____________________________________________
EX PARTE: RAY LOUIS JOHNSON, JR.
____________________________________________
APPEAL FROM
TH
THE 8 DISTRICT COURT OF HOPKINS COUNTY, TEXAS
TRIAL COURT NOS. 03178, 03179 & 03180
____________________________________________
APPLICANT’S APPENDIX
____________________________________________
LIST OF DOCUMENTS
***Below are certified copies of the following documents***
Johnson’s plea papers, dated October 31, 2003…….………………………… Ex. A
Trial Court adjudicates Johnson on February 21, 2005 ……………………… Ex. B
Johnson’s letter to Trial Court, filed April 5, 2007 …………………………...Ex. C
Applicant’s Brief Page 13
Johnson’s “Motion to Withdraw,” filed July 2, 2010………………………….Ex. D
Johnson’s Application for Writ of Habeas Corpus pursuant to
art. 11.072 of the Texas Code of Criminal Procedure,
dated May 14, 2014 ………………………………………………….……….. Ex. E
Order from the Trial Court, titled Order Denying Relief Pursuant to Section 11.072,
TCCP, and Issuance of Findings of Fact and Conclusions of Law,
filed Nov. 17, 2014 ………………………………………………………….....Ex. F
Applicant’s Brief Page 14
App. 01
App. 02
App. 03
App. 04
App. 05
App. 06
App. 07
App. 08
App. 09
App. 10
App. 11
App. 12
App. 13
App. 14
App. 15
App. 16
App. 17
App. 18
App. 19
App. 20
App. 21
App. 22
App. 23
App. 24
App. 25
App. 26
App. 27
App. 28
App. 29
App. 30
App. 31
App. 32