S%?-f5 PD - 0892-15
ORIGINAL
No. 11-13-00174-CR
KfcUfcllWfcU M
COURT OF CRIFWAL AFP^jm s
IN THE TEXAS COURT UUUK' ur bK!Li" Xl "
OF CRIMINAL APPEALS AUG 1? 2Q15
Morris Landon Johnson II
Abe! Acosta, C\q&
-Petitioner/Appellant-
v.
The State of Texas
-Respondent/Appellee-
PETITION FOR DESCRETIONARY REVIEW
From the 266th District Court, Erath County, Texas
Trial Court Cause No. CR 13895
Appellate opinion handed down by the Eleventh District Court of Appeals in
Eastland, Texas on June 5, 2015
*Motion for Rehearing not filed*
*Oral Argument not requested*
FILED IN
MORRIS LANDON JOHNSON II #1877943
COURT OF CRIMINAL "rrtALS
APPEALS
APPPELLANT, PRO SE AUG 19 2015
COFFIELD UNIT
2661 F. M. 2054 Abel Acosta, Clerk
TENNESSEE COLONY, TX. 75884
IDENTITY OF THE PARTIES
Appellant/petitioner Morris Landon Johnson II
TDCJ# 01877943
C/oH. H. CoffieldUnit
2661 FM 2054
Tennessee Colony, TX 75884
Appellee The State of Texas
Appellant Counsel Russell King
13211 S. US HWY 377
Dublin, Texas 76446
Trial Counsel Andrew Ottoway
PO Box 1697
Granbury, Texas 76048
States Trial and Appellate Counsel Alan Nash DA
Sterling Harmon ADA
P O Box 30
Stephenville, Texas 76401
TABLE OF CONTENTS
Cover Sheet 1
Identity of Parties 2
Table of Contents 3
Index of Authorities 4
Statement of the Case 5
Statement of Procedural History 6
Grounds for Review 7
Reason for Review 7
Question for Review 7
Summary of Argument 8,9
Argument and Authorities 9
Prayer 12
Certificate of Service 12
Appendix 13
(Judgement and opinion from Eleventh Court of Appeals)
Index of Authorities
Johnson v. State, 967 S.W. 2D 410,417 (Tex. Crim.APP.1998) PG# 10
Nealv. State, 256 S.W. 3D 264 (Tex. Crim.APP.2008) PG# 11
Ortiz v. State, 93 S.W. 3D 79 (Tex. Crim.APP.2002) PG# 11
Stafford v. State, 813 S.W. 2D 503,506 (Tex. Crim.APP.1991) PG# 9,10
US v. Garber, 47 F. 2D 212 (5th Cir 1972) PG# 10
Rules
Texas Rules of Evidence Rule 404(b) PG# 7,8,9
Texas Rules of Appellate Proc. 66.3(a)(d) PG# 7
Texas Rules of Evidence Rule 103(d) PG# 11
Federal Rules of Evidence Rule 103(e) PG# 11
References
Plain Error - Blacks Law Dictionary PG# 10
Statement of the Case
On October 2, 2012 petitioner cashed a check in the amount of $523.56 from
the account of Timothy Guthrie at Texas Bank. Several Days later, Tim Guthrie
contacted the bank alleging that he had not signed the check the petitioner cashed.
Mr. Guthrie contacted the Stephenville Police and provided a written statement
denying he had given the check to the appellant. Based on Tim Guthrie's statement
Stephenville Police Department obtained a warrant for the arrest of petitioner. On
November 8th, 2012 petitioner was arrested when he arrived at a traffic stop
conducted by Stephenville Police. After searching petitioners wallet checks made
payable to petitioner were found as well as debit cards, workforce card and a Texas
State ID not belonging to petitioner. These items were seized. Once at the jail
another search of petitioners wallet by Erath County Jail Staff resulted in the
alleged seizure of a small plastic bag containing .06 grams of methamphetamine.
Statement of Procedural History
The petitioner was indicted for the crime of Forgery by Passing by the Grand
Jury in the 266th Judicial District on February 19, 2013. The case was called to trial
by jury on May 15, 2013. The jury returned a guilty verdict that same day. On May
16, 2013 the jury returned a sentencing verdict of 10 years confinement and
assessed a fine of $2000.00. On June 11, 2013 petitioner timely filed his notice of
appeal. On June 5, 2015 an opinion was filed by the Eleventh District Court of
Appeals in Eastland, Texas affirming the trial courts judgement. Motion for
rehearing was not filed.
Grounds for Review
Issue No. 1
Petitioner was denied a fair trial because the trial court erred in allowing into
evidence during the guilt - innocence phase of the trial evidence of extraneous
offenses in violation of Rule 404(b) of the Texas Rules of Evidence. Trial courts
error is plain error or "error of apparent record", there by subject for appellate
review without being preserved to the record by timely motion, complaint and/or
objection.
Reason for Review
The Court of Appeals decision to not review trial courts error of admitting
prejudicial extraneous offense evidence because it was not preserved to the record
conflicts with the applicable provisions of the applicable statutes, as well, the
decision of other court of appeals. Tex R. App. Proc. 66.3(a)(d)
Question for Review
Should an obvious error(s) in the trial courts admission of evidence of
extraneous offense that creates much prejudice and denied defendant a fair trial
escape review by the court of appeals due to trial counsels failure to preserve the
error(s) to the record?
Summary of Argument
Issue No. 1
Rule 404(b) of the Texas Rules of Evidence prohibits the admission into
evidence, evidence of other crimes, wrongs or acts to prove the character of a
person in order to show action in conformity there with. During the guilt -
innocence portion of petitioner's trial the state continually placed before the jury,
evidence related to other crimes or bad acts to show that petitioner's character was
that of a criminal and that in the instant case the petitioner acted in conformity with
that character. This evidence was in the form of other checks and debit cards
unrelated to the charge in this case that were admitted into evidence. A video tape
interview conducted by Stephenville Police Department Detective Roger Dixon
that discussed criminal activity in which petitioner was allegedly involved, but
which had no connection to the forgery for which petitioner was standing trial, was
also among this evidence. Admission of this evidence was a obvious violation of
Rule 404(b) of the Texas Rules of Evidence. It created extreme prejudice and
resulted in the petitioner being denied a fair trial in violation of the 14th
Amendment of the United Stated Constitution. As such, errors that are plain or
obvious are subject to appellate review without having to be preserved to the
record by timely objection, complaint or motion, which petitioner argues is
applicable in this case. The errors are so numerous, egregious and denied the
petitioner the right to be tried fairly and impartially on the sole charge that he had
been indicted.
Argument and Authorities
Issue No. 1
Petitioner was denied a fair trial because the trial court erred in allowing into
evidence during the guilt - innocence phase of the trial evidence of extraneous
offenses in violation of Rule 404(b) of the Texas Rules of Evidence. Trial courts
error is "plain error", thereby subject to review without being preserved to the
record.
The State introduced into evidence on multiple occasions during the guilt -
innocence phase of the trial evidence of other crimes which the petitioner may or
may not of been involved in, but that were not directly relevant to the guilt or
innocence of the petitioner for the charge which he was being tried. States Exhibit
4 and 5 are allegedly forged checks seized from petitioner on November 8, 2012.
States Exhibit 6 is a custodial interrogation of petitioner by Stephenville Police
Department Detective Roger Dixon which includes not only information
concerning the crime that he was charged, but ultimately information regarding an
alleged criminal ring that was engaged in theft and forgery throughout the
Stephenville area that was not relevant as to whether the petitioner was guilty of
knowing that the check he passed in the charge which he was standing trial was in
fact forged.
This court found that an accused must be tried only for the offense with
which he or she is charged. The accused may not be tried for "a collateral crime or
for being a criminal generally" Stafford v State, 813 S.W. 2D 503,506 (Tex.
Crim.APP.1991). In this case the State repeatedly put before the jury instance after
instance where it was alleged that petitioner was not standing trial for, nor had he
been charged with.
The trial courts failure to not exclude this evidence of extraneous offenses
had an egregious negative effect on the substantial rights of petitioner. Johnson v.
State, 967 S.W. 2D 410,417 (Tex. Crim.APP. 1998) petitioner had the right to be
tried for the alleged crime of which he had been indicted of passing a single forged
check. This right was violated by the admission of the video alone, but even more
so by the admission of the other checks and testimony specifically concerning
extraneous offense without such a guilty verdict would not have been possible.
This error by the trial court in allowing the admission of evidence of
extraneous offense is so obvious that it should be considered a "plain error" and of
been reviewed by the appellate court despite trial counsels failure to raise a proper
objection. US v. Garber, 47 F. 2D 212 (5th Cir 1972)
Plain error is defined as: An error that is so obvious and prejudicial that an
appellate court should address it despite the parties failure to raise a proper
objection at trail - A Plain Error is often said to be so obvious and substantial that
failure to correct it would infringe a party's due process rights and damage the
10
integrity of the judicial process. (Also termed fundamental error; error apparent of
record) Blacks Law Dictionary.
In this case the petitioners due process right to be tried on the charge in the
indictment and not on an extraneous offense was violated by the courts failure to
exclude the extraneous offense evidence Texas Rules of Evidence Rule 103(d),
then again by the appeals court failure to review the numerous errors of admission
of extraneous offense evidence that was so abundantly present in this trial, because
his trial counsel failed to preserve the errors, regardless of the effects had. Federal
Rules of Evidence Rule 103(e)
Petitioner asks that this court review this case in light of the "Plain Error"
rule. "Harm is egregious if it deprives a defendant of a fair and impartial trial."
Nealv. State, 256 S.W. 3D 264 (Tex. Crim.APP.2008)
"Egregious harm for which alleged error is reviewed when there is no
objection in the trial court, exists when the defendant has been denied a fair and
impartial trial." U.S.C.A Const. Amend 6, Ortiz v. State, 93 S.W. 3D 79 (Tex.
Crim.APP.2002)
The petitioner in this case was tried almost exclusively by extraneous
offense evidence, and it would be a falsity to claim that his trial was fair and
impartial. The prejudicial effect of the admission of the extraneous offense
evidence was so extensive that a conviction would not have been obtained without
it.
11
Prayer for Relief
Therefore the petitioner prays that this court will grant review in this case
and reverse the decision ordered by the Eleventh Court of Appeals Division, and
any and all other relief which he may be entitled
Respectfully
Morris Landon Johnson II
TDC# 01877943
CoffieldUnit
2661 F. M. 2054
Tennessee Colony, Texas 75884
Certificate of Service
I hereby certify that a true and correct copy of the above and forgoing
document has been forwarded by United States first class mail to the following:
Mr. Alan Nash
Erath County District Attorney
P. O. Box 30
Stephenville, Texas 76401
State Prosecuting Attorney
P. O. Box 12405
Austin, Texas 78711
12
w^
11TH COURT OF APPEALS
EASTLAND, TEXAS
JUDGMENT
Morris Landon Johnson, II, * From the 266th District
Court of Erath County,
Trial Court No. CR13895.
Vs. No. 11-13-00174-CR * June 5,2015
The State of Texas, * MemorandumOpinion by Wright, C.J.
(Panelconsists of: Wright, C.J.,
Willson, J., and Bailey, J.)
This court has inspected the record in this cause and concludes that
there is no error inthe judgment below. Therefore, inaccordance with this
court's opinion, the judgment ofthe trial court is in all things affirmed.
Opinion filed June 5,2015
In The
eieuentl) Court of appeal*
No. 11-13-00174-CR
MORRIS LANDON JOHNSON, II, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 266th District Court
Erath County, Texas
Trial Court Cause No. CR13895
MEMORANDUM OPINION
The jury convicted Morris Landon Johnson, II offorgery by passing acheck
without authorization. See Tex. Penal Code Ann. §32.21 (West 2011). Appellant
pleaded true to two enhancement paragraphs, and me jury assessed punishment at
confinement for aterm often years and afine of$2,000. The trial court sentenced
him accordingly. We affirm.
In his sole issue on appeal, Appellant argues that the trial court denied him a
fair trial when it admittedevidence ofextraneous offenses inviolation ofRule 404(b)
ofthe Texas Rules ofEvidence. The State contends that the evidence was admissible
either as same transaction contextual evidence or that the evidence was admissible
to show motive, intent, plan, knowledge, or absence of mistake or accident.
We review atrial court's decision to admit or exclude evidence under an abuse
of discretion standard. Montgomeryv. State, 810 S.W.2d 372,391 (Tex. Crim. App.
1991) (op. on reh'g). We will reverse a trial court's ruling only if it is outside the
"zone ofreasonable disagreement." Id. Rule 404(b) provides that evidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in order
to show that he acted in conformity therewith. Tex. R. Evid. 404(b). The rule
further provides that evidence may be admissible for other purposes, such as proof
ofmotive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident. Id. Extraneous offense evidence may be admissible for
purposes other than those expressly listed, such as when the evidence is found to be
same transaction contextual evidence. Rogers v. State, 853 S.W.2d 29, 33 (Tex.
Crim. App. 1993); Montgomery, 810 S.W.2d at 388.
The trial court admitted three exhibits—State's Exhibit Nos. Four through
Six—and correspondingtestimony, regarding extraneous offenses. Defense counsel
objected to the admission of some, butnotall, of the extraneous conduct offered by
the State.
The record shows that Appellant cashed a checkwritten on Timothy Guthrie's
account at Texas Bank in Stephenville; Appellant's actof cashing thatcheck formed
the basis for the charges in this case. Guthrietestified that he did not write the check,
nor did he give anyone else permission to write the check to Appellant. When
OfficerMarty Golightly, ofthe Stephenville Police Department, arrestedAppellant,
he searched Appellant's billfold and found several checks, two of which were
admitted into evidence as State's Exhibit Nos. Four and Five. State's Exhibit No.
Four was another check written on Guthrie's account and made payable to
2
Appellant. State's Exhibit No. Five was a check written on Joseluis Gomez's
account and was also made payable to Appellant. Officer Golightly also found an
account card, a workforce card, and an identification card that did not belong to
Appellant. Defense counsel did not object to Officer Golightly's testimony
regardingwhat he found when he searchedAppellant.
As to State's Exhibit No. Four, defense counsel initially objected that the
check was notproperly identified, andthe trial courtdidnot admitthe exhibit at that
time. However, the State later reofifered the exhibit, and defense counsel indicated
that he had no objection. Defense counsel also did not object to the admission of
State's Exhibit Nos. Five and Six. State's Exhibit No. Six was the recorded
interview of Appellant in which Detective RogerDixon questioned Appellant about
a conspiracy to commit forgery.
The State asked Detective Dixon about his knowledge ofthe various ways and
schemes that people employ to conduct forgeries. Defense counsel objected to the
detective's "opinion about some schemes or - in another case," and the trial court
overruled the objection. However, Detective Dixon testified ingeneral terms, based
onhis experience in investigating financial crimes, about various ways andschemes
(hat people use to conduct forgeries. At that point, Detective Dixon was not
discussing other specific offenses. The State then asked the detective what
Appellant's own description ofhis activities indicated. Defense counsel objected on
the ground that the question called for an opinion on the ultimate"issue, and-the trial
eourt sustained the objection. Subsequently, the State asked Detective DixoaJntwo
questions, whether Appellant admitted during toeInterview that he helped pass a
number offorged checks and that hesigned a"scribble" on asignature line. Defense
counsel raised^an extraneous offense objection to each question, and the trial court
sustained both objections.
During closing arguments, defense counsel mentioned the check written on
Gomez's account, and he did not object when the prosecutor discussed the
extraneous offenses. In addition, during deliberations, thejury requested that several
exhibits, including State's Exhibit Nos. Four, Five, and Six, be sent to them, and
defense counsel and Appellant agreed with the trial court's proposal to send the
exhibits to the jury. We also note that the trial court included an extraneous offense
instruction in thejury charge at both stages of the trial.
The record shows that, even when defense counsel objected to testimony
regarding extraneous offenses, he did not pursue the matter further to an adverse
ruling. Defense counsel did not ask for further relief, such as a request for ajury
instruction or a motion for mistrial, after the trial court sustained his objections.
Therefore, Appellant has not shown that he received an adverse ruling inconnection
with the extraneous offense evidence. Because Appellant has not shown that he
received an adverse ruling in those instances when he did object to the extraneous
offense evidence and because Appellant failed to object to the admission of the
remainder of the evidence regarding the extraneous offenses, he has failed to
preserve error for our review. SeeTex. R. App. P. 33.1. Appellant's soleissue on
appeal is overruled.
We affirm the judgment ofthe trial court.
JIM R. WRIGHT
June 5,2015 CHIEF JUSTICE
Do not publish. See Tex. R App. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.