                                                                                                ACCEPTED
                                                                                            06-14-00194-CR
                                                                                 SIXTH COURT OF APPEALS
                                                                                       TEXARKANA, TEXAS
                                                                                      9/21/2015 12:00:00 AM
                             No. 06-14-00194-CR                                            DEBBIE AUTREY
                                                                                                     CLERK



                   IN THE COURT OF APPEALS
            FOR THE SIXTH SUPREME JUDICIAL DISTRICT FILED IN
                                                6th COURT OF APPEALS
                     AT TEXARKANA, TEXAS          TEXARKANA, TEXAS
                                                                    9/21/2015 9:33:00 AM
Bennie Johnson,                                                        DEBBIE   AUTREY
                                                                              Appellant
                                                                            Clerk


v.

The State of Texas,                                                               State
                  Appealed from the 102nd Judicial District Court
                              Bowie County, Texas




                        BRIEF FOR THE STATE
                    The State Does Not Request Oral Argument

                                             Respectfully submitted:

                                             Jerry D. Rochelle
                                             Criminal District Attorney
                                             Bowie County, Texas
                                             601 Main Street
                                             Texarkana, Texas 75501
                                     By:     Lauren N. Sutton
                                             Assistant District Attorney
                                             601 Main Street
                                             Texarkana, Texas 75501
                                             Texas Bar No. 24079421
                                             Attorneys for the State
                              In The Court of Appeals
                       For the Sixth Supreme Judicial District
                                At Texarkana, Texas


Bennie Johnson,                          §                    Nos. 06-14-00194-CR
           Appellant                     §
                                         §
v.                                       §
                                         §
The State of Texas,                      §
             State                       §                  BRIEF FOR THE STATE
                                         §


                                Identity of the Parties

        The following is a complete list of all the parties to the trial court’s judgment

as required by the provisions of Rule 38.2(a) of the Texas Rules of Appellate

Procedure:

     1. Defendant and Appellant:

        Bennie Johnson
        Pro Se
        TDCJ No. 1970053
        Mark w. Stiles Unite
        3060 FM 3514
        Beaumont, Tx 77705

     2. Attorneys for Appellant on appeal:

        Derric S. McFarland
        816 Pine Street
        P.O. Box 1048
        Texarkana, TX 75501



                                             i
3. Attorneys for Appellant at trial:

   Mr. John Stroud
   515 Main Street
   Texarkana, Texas 75501

4. Attorney for the State of Texas at trial:

   Kelley Crisp
   Samantha Oglesby
   Assistant District Attorneys
   Bowie County, Texas
   601 Main Street
   Texarkana, Texas 75501

5. Attorney for the State of Texas on appeal:

   Lauren N. Richards
   Assistant District Attorney
   Texas Bar No. 24079421
   601 Main Street
   Texarkana, Texas 75501
   Lauren.sutton@txkusa.org

6. Presiding Judge at trial:

   The Honorable Bobby Lockhart
   District Court Judge
   102nd Judicial District
   Bowie County, Texas
   Bi-State Justice Building
   100 North State Line Avenue
   Texarkana, Texas 75501




                                       ii
                                               Table of Contents

Identity of the Parties and Counsel ......................................................................... i-ii

Table of Contents ..................................................................................................... iii

Index of Authorities ..................................................................................................iv

Statement of the Case................................................................................................. 1

Reply to Points of Error ............................................................................................. 2

Argument.............................................................................................................. 3-13

                   Reply to Point of Error Number One ................................................ 3-7
                   The evidence is legally sufficient to support Appellant’s
                   conviction

                   Reply to Points of Error Number Two and Three ........................... 8-13
                   The Appellant did not receive ineffective assistance of counsel




Prayer for Relief ....................................................................................................... 14

Certificate of Compliance ........................................................................................ 15

Certificate of Service ............................................................................................... 16




                                                            iii
                                           Index of Authorities

Cases

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007 ................................ 4

Jackson v. Virginia, 443 U.S. 307, 319 (1979)....................................................... 3,4

Lopez v. State, 343 S.W.3d 137 (Tex. Crim. App. 2011) .......................................... 8

Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) .......................................... 4

Smith v. State, 84 S.W.3d 38 (Tex. App.—Texarkana 2002, no pet.) ....................... 9

Strickland v. Washington, 466 U.S. 668 (1984) ................................................... 8,12

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) ....................................... 9

Williams v. State, 235 S.W.3d 742 (Tex. Crim. App. 2007) ..................................... 4

Wong v. Belmontes, 130 S Ct. 383 (2009) ............................................................... 12



Texas Penal Code

Tex. Penal Code § 22.021 .......................................................................................... 5




                                                         iv
                            Statement of the Case

      Appellant, Bennie Johnson was found guilty of aggravated sexual assault.

The jury assessed punishment at life sentences, to be served consecutively in the

Texas Department of Criminal Justice- Institutional Division. The Judge sentenced

the Appellant accordingly. The Appellant’s court-appointed appellate attorney filed

a Bfief in Support of Appellant Counsel’s Motion to Withdraw (Anders Brief) on

April 17, 2015. The Appellant then filed a brief, pro se appealing his conviction on

three points of error.




                                         1
                   Reply to Points of Error

              REPLY TO POINT OF ERROR NUMBER ONE:

The evidence presented at trial is legally sufficient to support the
Appellant’s conviction.


        REPLY TO POINT OF ERROR NUMBER TWO AND THREE:

The Appellant did not receive ineffective assistance of counsel and
was not prejudiced by his counsel’s failure to object.




                                 2
                                         Argument

                                Reply to Points of Error One

         The evidence presented at trial is legally sufficient to support the
         Appellant’s conviction.


         In his first point of error, the Appellant challenges the legal sufficiency of

the evidence used to convict Appellant of aggravated sexual assault. Appellant

argues that the testimony of the State’s witnesses is insufficient to support his

conviction. However, viewing the evidence presented at trial in the light most

favorable to the verdict, it is clear that sufficient evidence was presented through

the victim’s testimony and the testimony of the other witnesses for the State from

which a rational jury could have found beyond a reasonable doubt that the

Appellant committed the offense of aggravated sexual assault.

                                 Argument and Authorities

         In reviewing the sufficiency of the evidence, this Court should apply the

standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). This standard requires

a reviewing court to examine all the evidence in the light most favorable to the

verdict to determine whether a rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt.1 This standard of review


1
    443 U.S. 307, 319 (1979).
                                             3
applies to cases involving both direct and circumstantial evidence. 2 The reviewing

court should consider everything presented at trial but should not substitute their

own judgment regarding the weight and credibility of the evidence for that of the

fact finder.3 Further, an appellate court presumes the fact finder resolved

conflicting inferences in favor of the verdict, and defers to that determination. 4 The

question is not whether the appellate court itself believes the defendant is guilty

beyond a reasonable doubt, but whether viewing the evidence in the light most

favorable to the verdict, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.5

       Legal sufficiency of the evidence is measured by the elements of the offense

as defined by a hypothetically correct jury charge.6 The hypothetically correct jury

charge sets out the law, is authorized by the indictment, does not unnecessarily

increase the State‘s burden of proof or unnecessarily restrict the State‘s theories of

liability, and adequately describes the particular offense for which the defendant

was tried.7 In this case, Appellant committed aggravated sexual assault if he

intentionally or knowingly caused the penetration of the sexual organ of the victim,




2
  Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
3
  Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
4
  Clayton, 235 S.W.3d at 778.
5
  Jackson, 443 U.S. at 318-19.
6
  Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
7
  Malik v. State, 953 S.W.2d at 240.
                                              4
without her consent, and by acts or words, threatened to cause or place the victim

in fear that death would be imminently inflicted on the victim.

B. Application of Law to Facts

         To prevail in a case of aggravated sexual assault, the State must prove

beyond a reasonable doubt the defendant intentionally or knowingly causes the

penetration of the anus or sexual organ of another person by any means without

that person’s consent, and by acts or words, places the victim in fear that death,

serious bodily injury, or kidnapping will imminently inflicted upon any persons or,

by acts or words occurring in the presence of the victim, threatens to cause the

death, serious bodily injury, or kidnapping of any person.8

         The Appellant argues the evidence is insufficient because the testimony of

witnesses agree that the physical and medical evidence is inconsistent with the

sexual assault. He also contends the DNA evidence presented at trial creates a

reasonable doubt as to his conviction.

         In this case, Investigator Daphne Stiles testified the victim’s medical records

did not have mention she suffered any injuries. (R.R. Vol. 8, p. 96). She also stated

that based on her 27 years of experience in law enforcement, more times than not,

there are not injuries and she has rarely seen one with injury that you can detect.




8
    Tex. Penal Code § 22.021
                                            5
(R.R. Vol. 8, p. 97). Based on this, the lack of injury did not concern Mrs. Stiles.

(R.R. Vol. 8, p. 97).

      Kristy Link from the Texas DPS Crime Lab testified that analysis was

performed of the sexual assault kit and buccal swabs from Bennie Johnson. (R.R.

Vol. 8, p. 125). Mrs. Link testified that a comparison of the two DNA profiles

developed for both the victim and the Appellant revealed that the epithelial cell

fraction was consistent with a mixture from the victim and Bennie Johnson. (R.R.

Vol. 8, p. 131). The sperm cell fraction was consistent with a mixture from Bennie

Johnson, the victim, and an unknown individual. (R.R. Vol. 8, p. 131). The

Appellant could not be excluded as the contributor of the major component of the

profile. (R.R. Vol. 8, p. 131).

      The victim testified that on June 26, 2012 she had left a party and a friend’s

apartment and was walking down Robison Road. (R.R. Vol. 8, p 143-44). A man

in a black SUV offered her a ride and she recognized him so she accepted the ride.

(R.R. Vol. 8, p. 144). The man stated he needed to make a stop before taking the

victim on to her destination. (R.R. Vol. 8, p. 147). He then pulled into a lot, pulled

out a gun, put it to her head, and demanded oral sex. (R.R. Vol. 8, p. 147). She

jumped out of the truck, but the man chased and caught her, then threw her onto

the ground. (R.R. Vol. 8, p. 148). At this point he held the gun to her head and she




                                          6
was in fear of death. (R.R. Vol. 8, p. 149). The man then sexually assaulted the

victim as she layed on the ground. (R.R. Vol. 8, p. 149).

      A few days after the attack, the victim was shown a line-up and she

identified the man who had sexually assaulted her (R.R. Vol. 8, p. 158). The victim

also made an in-court identification of the Appellant as the man who had attacked

her. (R.R. Vol. 8, p. 158).

      The victim also testified that the morning of the attack she had sexual

intercourse with her fiancé, Michael. (R.R. Vol. 8, p. 158).

      A rational jury could find from the testimony given that the Appellant

committed the offense of aggravated sexual assault.

C. Conclusion

      Viewing the evidence in a light most favorable to the verdict, this court can

find that a rational jury could have found beyond a reasonable doubt the Appellant

intentionally or knowingly causes the penetration of the anus or sexual organ of

another person by any means without that person’s consent, and by acts or words,

places the victim in fear that death, serious bodily injury, or kidnapping will

imminently inflicted upon any persons or, by acts or words occurring in the

presence of the victim, threatens to cause the death, serious bodily injury, or

kidnapping of any person.

      For these reasons, Appellant’s first point of error should be overruled.

                                          7
                          Reply to Point of Error Two & Three

         The Appellant did not receive ineffective assistance of counsel


         In points of error number two and three, Appellant argues his trial attorney

rendered ineffective assistance of counsel because he pursued a trial strategy that

allowed for the introduction of extraneous offenses to be introduced and for failing

to investigate and further test DNA evidence. However, the Appellant has failed to

show that counsels’ performance was deficient and that he was prejudiced by his

defense counsels alleged deficiencies.

                                 Argument and Authorities

A. Standard of Review

         To establish ineffective assistance of counsel, pursuant to the two-prong

standard set out in Strickland v. Washington, Appellant must demonstrate that

counsel’s performance “fell below an objective standard of reasonableness” and

that he was prejudiced as a result.9 A claim of ineffective assistance of counsel

must be firmly rooted in the record, with the record itself affirmatively

demonstrating the alleged ineffectiveness.10 Failure to make the required showing




9
    Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
10
     Lopez v. State, 343 S.W.3d 137, 142-43 (Tex. Crim. App. 2011)
                                                8
of either deficient performance or sufficient prejudice defeats an ineffectiveness

claim.11

B. Application of Law to Facts

         Appellant argues that his trial counsel’s performance was deficient because

it consisted of a trial strategy which allowed for the introduction of extraneous

offenses at trial. “When facing a silent record as to defense counsel’s strategy, the

court will not speculate as to defense counsel’s tactics or guess what the reasons

might be for taking or not taking certain actions.”12

         During opening statements, the defense informed the jury that the

Appellant’s defense would be that the victim consented to the sexual activity. (R.R.

Vol. 8, p. 16). The trial court informed defense counsel that his cross examination

of Investigator Stiles could open the door to the extraneous offenses where other

women claimed they were sexually assaulted by the Appellant. (R.R. Vol. 8, p.

139). The defense indicated they knew of the possibility, but that the Appellant

was still going to take the witness stand and testify that the sex act with the victim

was consensual. (R.R. Vol. 8, p. 139). Prior to taking the witness stand, the

Appellant was admonished of his 5th Amendment rights:

         THE COURT:            So you understand you do not have to testify unless you

wish to?

11
     Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
12
     Smith v. State, 84 S.W.3d 38, 42 (Tex. App.—Texarkana 2002, no pet.).
                                                9
      DEFENDANT:          Yes, sir.

      THE COURT:          Let me ask you think: Are you going to be – do you wish

to testify of your own free will and accord?

      DEFENDANT:          Yes, sir.

      THE COURT:          Let me ask this, John: What’s been your advice to the

defendant in this case as to whether or not he should testify or not?

      DEFENSE COUNSEL:                 Your Honor, with the defense, you know,

Bennie’s position throughout this whole case is that this was a consensual act, and

I’ve told him, well if it’s a consensual act, you’re going to have to communicate

that to the jury. It would either be through his statement to the police or looking

them in eye in the courtroom and giving the nature of his defense. My advise to

him is that if he wants to present that defense, the only plausible way to do it is

through his testimony here in court; is that correct, Bennie?

      DEFENDANT:          Yes, sir.

      COURT:       Bennie, is that pretty well what he’s told you?

      DEFENDANT:          Yes, sir.

      …

      COURT:       Let me do this, while we’re outside the presence of the jury.

This was something we mentioned earlier before we brought the jury back. The

jury is out now, and, again, John, I’m sure y’all have discussed the fact that by him


                                          10
testifying to the, I guess, alleged consensual aspects of this, it could open the door

for the other offense to come in. I can’t say that with any certainty, but looks to the

Court like that’s what could happen.

       DEFENSE COUNSEL: Judge, we are aware of the potential of the other

women under the pseudonyms of … Dymond Harris and Ginger Zwick could be

potential witnesses testifying that Bennie had allegedly raped them prior to this

occurrence, and we are aware that this is out there.

       (R.R. Vol. 8, p. 170).



       Every indication in the record shows that the Appellant was putting for the

defense of consent and was aware of what the possible repercussions would be of

asserting that defense. With the addition of the DNA evidence during trial, the

defense was extremely limited in the defensive strategies it would use. The

Appellant has failed to show that his trial counsel’s strategy was not a reasonable

trial strategy.

       As for the failure to ‘investigate the alternative DNA’, the Appellant has

failed to show that such failure constitutes deficient performance. The fact that the

victim testified she had consensual intercourse with her fiancé the morning of the

assault accounts for the unknown contributor in the DNA analysis.




                                          11
       Because the record lacks any indication of Appellant’s trial counsel’s

strategy as to the DNA evidence, it cannot be found that the representation

rendered was deficient.

       In addition, the Appellant has failed to sustain his burden of proof for an

ineffective assistance of counsel claim in showing, by a preponderance of the

evidence, that this failure prejudiced his defense. To establish prejudice, “a

defendant must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”13

       Strickland places the burden on the defendant, not the State, to show a

reasonable probability that the result would have been different, but for counsel’s

deficient performance.14 For an ineffective assistance of counsel claim, Appellant

must “affirmatively prove prejudice.”15

       Given the state of the evidence before the jury, this Court can conclude that

Appellant was not prejudiced by counsel’s defensive strategies.

C. Conclusion

       Appellant has failed to meet either prong of the Strickland test to support a

claim of ineffective assistance of counsel. The record reasonably supports a

conclusion that defense counsel’s performance was not deficient. Therefore,


13
   Strickland v. Washington, 466 U.S. 668 (1984).
14
    Wong v. Belmontes, 130 S Ct. 383, 386 (2009)(citing Strickland, 466 U.S. at 694).
15
    Strickland, 466 U.S. at 693.
                                               12
counsels’ performance did not fall below an objective standard of reasonableness.

Appellant has also failed to affirmatively show that his trial counsels’ alleged error

caused prejudice.

      For these reasons, Appellant’s second and third points of error should be

overruled.




                                         13
                                  Prayer for Relief

      WHEREFORE, PREMISES CONSIDERED, there being legal and

competent evidence sufficient to justify the conviction and punishment assessed in

this case and no reversible error appearing in the record of the trial of the case, the

State of Texas respectfully prays that this Honorable Court affirm the judgment

and sentence of the trial court below.



                                               Respectfully Submitted:

                                               Jerry D. Rochelle
                                               Criminal District Attorney
                                               Bowie County, Texas
                                               601 Main Street
                                               Texarkana, Texas 75501
                                               Phone: (903) 735-4800
                                               Fax: (903) 735-4819



                                               __/s/Lauren N. Sutton____________
                                         By:   Lauren N. Sutton
                                               Assistant District Attorney
                                               601 Main Street
                                               Texarkana, Texas 75501
                                               Phone: (903) 735-4800
                                               Fax: (903) 735-4819

                                               Attorneys for the State




                                          14
                             Certificate of Compliance

      I, Lauren N. Sutton, certify that, pursuant to Rule 9 of the Texas Rules of

Appellate Procedure, Appellee’s Brief contains 30,78 words, exclusive of the

caption, identity of parties and counsel, statement regarding oral argument, table of

contents, index of authorities, statement of the case, statement of issues presented,

statement of jurisdiction, statement of procedural history, signature, proof of

service, certification, certificate of compliance, and appendix.



                                               __/s/Lauren N. Sutton__________________
                                               Lauren N. Sutton




                                          15
                              Certificate of Service

      I, Lauren N. Sutton, certify that I have served a true and correct copy of the

foregoing Brief for the State upon Mr. Derric S. McFarland, Attorney for

Appellant, on this the 21st day of September, 2015.



                                             __/s/Lauren N. Sutton___________
                                             Lauren N. Sutton




                                        16
