                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-07-00342-CR

INNIS JOHNSON,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                          From the 278th District Court
                             Madison County, Texas
                             Trial Court No. 11,143


                                    OPINION


      A jury convicted Innis Johnson of aggravated assault of a public servant and,

after he pleaded true to enhancement allegations, assessed his punishment at fifty-five

years’ imprisonment.    Johnson contends in two issues that: (1) the court erred by

denying his motion for instructed verdict because the evidence is legally insufficient to

prove he used or exhibited a deadly weapon during the commission of the assault; and

(2) the court abused its discretion by allowing the State to impeach him with his prior
conviction for aggravated assault of a public servant because the probative value of this

evidence is outweighed by the danger of unfair prejudice. We will affirm.

                                    Legal Sufficiency

        Johnson contends in his first issue that the court erred by denying his motion for

instructed verdict because the evidence is legally insufficient to prove he used or

exhibited a deadly weapon during the commission of the assault.

                                    Standard of Review

        A challenge to the denial of a motion for a directed or instructed verdict is a

challenge to the legal sufficiency of the evidence. McDuff v. State, 939 S.W.2d 607, 613

(Tex. Crim. App. 1997); Montgomery v. State, 198 S.W.3d 67, 84 (Tex. App.—Fort Worth

2006, pet. ref’d); accord Canales v. State, 98 S.W.3d 690, 693 (Tex. Crim. App. 2003). In

reviewing a claim of legal insufficiency, we view all of the evidence in a light most

favorable to the verdict and determine whether any rational trier of fact could have

found the essential element beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Sells v. State, 121 S.W.3d 748, 753-54

(Tex. Crim. App. 2003); Witt v. State, 237 S.W.3d 394, 396-97 (Tex. App.—Waco 2007,

pet. ref’d).

        We measure the sufficiency of the evidence against the hypothetically correct

jury charge for the case. Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007); Malik

v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).         Among other things, the

hypothetically correct charge must accurately apply the “law” as “authorized by the

indictment.” See Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000) (citing Malik,


Johnson v. State                                                                    Page 2
953 S.W.2d at 240); see also Lockwood v. State, 237 S.W.3d 428, 431 (Tex. App.—Waco

2007, no pet.); Sartain v. State, 228 S.W.3d 416, 421 (Tex. App.—Fort Worth 2007, pet.

ref’d). This means that the charge must instruct the jury on the statutory element(s)

alleged in the indictment. Curry, 30 S.W.3d at 404-05.

        In addition, the charge is limited by the factual allegations of the indictment. See

id. at 404. But cf. Gharbi v. State, 131 S.W.3d 481, 483 (Tex. Crim. App. 2003)

(hypothetically correct jury charge need not include factual allegation which “is not a

statutory element or ‘an integral part of an essential element of the offense’”) (quoting

Gollihar v. State, 46 S.W.3d 243, 254 (Tex. Crim. App. 2001)).          Thus, because the

indictment in Curry alleged that he had kidnapped Jetterson Williams, the

“hypothetically correct jury charge could not simply quote the language of the statute”

and instruct the jury to convict if it found he had kidnapped “another person.” See

Curry, 30 S.W.3d at 404. Rather, the hypothetically correct charge for that case would

instruct the jury that the State must prove Curry had kidnapped Williams as alleged.

Id.

                                        The Evidence

        At the time of the offense, Johnson was incarcerated at TDCJ’s Ferguson Unit.

The evidence reflects that Johnson punched correctional officer Christina Genco in the

jaw with his fist. He then drug her into the dayroom for that cell block and took her to a

bench where he held her with a piece of glass against her neck. As other correctional

officers surrounded them, Genco was able to pry the glass away from her neck. One of

the officers sprayed Johnson with “COP,” which is similar to mace or pepper spray, and


Johnson v. State                                                                      Page 3
the others then took hold of Johnson and escorted Genco to the prison infirmary. The

blow to Genco’s jaw caused a fracture of the mandible near the cleft of her chin.

        Christopher Smith was the only TDCJ employee who witnessed the assault

outside the dayroom. He saw Johnson punch Genco in the jaw with a closed fist and

then drag her into the dayroom. He did not see a piece of glass in Johnson’s hand when

he hit Genco.      David Simmons testified that, when he responded to the call for

assistance, he saw Johnson on the bench holding Genco in a head lock with a piece of

glass to her throat. Nicholas Blazek similarly testified that he initially observed Johnson

in the corner of the dayroom with the piece of glass to Genco’s throat.

        When Frances McCormick responded, she saw Johnson dragging Genco into the

dayroom. McCormick testified on direct examination by the prosecutor that she saw

Johnson dragging Genco backwards into the dayroom and that he had his hands

“[a]round her throat with the piece of glass.”       On cross-examination, McCormick

testified that she did not see a piece of glass in Johnson’s hand as he drug Genco to the

bench. Rather, she “just kn[ew] he had his hand or something around [Genco’s] neck.”

She did not actually see the piece of glass in his hand until he was at the bench.

        David Burns testified that when he arrived he likewise saw Johnson dragging

Genco through the dayroom. According to Burns, Johnson had her “in a headlock with

a piece of glass applied to the side of her neck.” When Burns ordered Johnson to let her

go, Johnson replied that he was “going to cut [her] neck.” Johnson disregarded three

orders to stop as he drug her to the bench.




Johnson v. State                                                                     Page 4
        Genco testified that she does not remember being hit. The last thing she recalls

before the assault was telling an inmate the time. “Everything went black,” and when

she came to, Johnson was dragging her through the dayroom door with his arm tightly

around her neck which made it difficult to breath. As she held Johnson’s arm and

turned her head trying to breath, he yelled at her to “stop grabbing” his arm. She told

him she was just trying to breath. Johnson then hit her in the jaw a second time, and

she blacked out again. When she came to the second time, she was at the bench at the

back of the dayroom, and Johnson was holding the piece of glass against her throat. On

cross-examination, she testified that this was the first moment when she noticed that

Johnson had a piece of glass.

        Besides the broken jaw, Genco suffered minor cuts and abrasions to her neck and

four fingers. She had no cuts or abrasions on the outside of her jaw or chin.

        After the State rested, Johnson moved for an instructed verdict on the basis that

the State presented no evidence that he had used or exhibited the piece of glass during

the commission of the assault. Johnson also asked the court to require the State to elect

which assault it intended to rely on for prosecution. The court denied both requests.

        Johnson testified in his own defense. He admitted that he hit Genco in the jaw

with his fist and dragged her to a bench in the dayroom, but he denied hitting her a

second time. He also denied holding a piece of broken glass at any point during the

incident.




Johnson v. State                                                                   Page 5
                            Aggravated Assault with a Deadly Weapon

        The indictment alleges that Johnson caused bodily injury to Genco “by striking

[her] with a hand, and the defendant did then and there use or exhibit a deadly

weapon, to-wit: a piece of glass, during the commission of said assault.”

        Johnson contends that the assault alleged in the indictment was complete after he

hit Genco in the chin and that his use of the piece of glass in the dayroom did not

happen “during the commission of” the assault. The State responds that “the assault

was a series of events, including the blow to the jaw and the verbal death threats and

the glass to the throat.”

        We construe the State’s position as an assertion that assault is a “continuing

offense.”    See Barnes v. State, 824 S.W.2d 560, 561-62 (Tex. Crim. App. 1991).         In

determining whether theft is a continuing offense for limitations purposes, the Court of

Criminal Appeals observed, “Generally, when each of the elements of a crime have [sic]

occurred, the crime is complete.” Id. at 562. Relying on a decision of the United States

Supreme Court, the Court recognized that only in “limited circumstances” will an

offense be construed as continuing in nature and held that an offense should not be so

construed “unless the explicit language of the substantive criminal statute compels such

a conclusion or the nature of the crime is such that [the Legislature] must assuredly

have intended that it be treated as a continuing one.” Id. (quoting Toussie v. United

States, 397 U.S. 112, 115, 90 S. Ct. 858, 860, 25 L. Ed. 2d 156 (1970)). Under this test and

for the reasons set forth below, we hold that aggravated assault is not a “continuing

offense.”


Johnson v. State                                                                      Page 6
        Because the indictment alleges that Johnson assaulted Genco by “striking [her]

with a hand,” this is the “offense” the State had to prove.                       The deadly weapon

allegation is consistent with section 22.02(a)(2) of the Penal Code which proscribes the

use or exhibition of a deadly weapon “during the commission of the assault.”1 See TEX.

PEN. CODE ANN. § 22.02(a)(2) (Vernon Supp. 2008). Under the plain language of the

indictment and from the statute,2 the State thus had to prove that Johnson used or

exhibited the piece of glass “during the commission of the assault.” See Curry, 30

S.W.3d at 404-05. The issue we must determine is how long did the commission of the

assault last. Resolution of this issue depends in part on how the charged offense is

defined.

        Criminal offenses generally involve one of three “conduct elements.”                             See

McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989); Underwood v. State, 176

S.W.3d 635, 641-42 (Tex. App.—El Paso 2005, pet. ref’d); Barnes v. State, 56 S.W.3d 221,

234 (Tex. App.—Fort Worth 2001, pet. ref’d). Those elements are: (1) the nature of the




1
         According to our research, statutes governing the use or exhibition of a deadly weapon may be
divided in three categories: (1) those which, like section 22.02(a)(2), proscribe the use or exhibition of a
deadly weapon “during the commission” of the offense; see TEX. PEN. CODE ANN. § 20.04(b) (Vernon
2003), § 22.02(a)(2) (Vernon Supp. 2008), § 30.05(d)(2) (Vernon Supp. 2008); (2) those which proscribe the
use or exhibition of a deadly weapon “in the course of the same criminal episode”; id. §
22.021(a)(2)(A)(iv) (Vernon Supp. 2008); and (3) those which proscribe the use or exhibition of a deadly
weapon “during the commission of the offense or during immediate flight following the commission of
the offense.” Id. § 12.35(c)(1) (Vernon Supp. 2008); see also TEX. CODE CRIM. PROC. ANN. art. 17.291(b)(2)(B)
(Vernon 2005), art. 42.12, § 3g(a)(2) (Vernon Supp. 2008).

2
         In construing a statute, we must apply the plain meaning of the statute unless it is ambiguous or
the interpretation would lead to absurd results. Williams v. State, 253 S.W.3d 673, 677 (Tex. Crim. App.
2008).



Johnson v. State                                                                                      Page 7
conduct; (2) the result of the conduct; and (3) the circumstances surrounding the

conduct. Id. An offense may involve more than one of these elements. Id.

        The conduct elements are generally examined in two contexts.            First, it is

important to define the applicable conduct element because this is the element of the

offense to which the appropriate culpable mental state applies. Id. For example, if

bodily injury is the alleged result of the defendant’s conduct, the State must prove that

the defendant intentionally, knowingly (or recklessly) caused that injury. See, e.g., Kelly

v. State, 748 S.W.2d 236, 239 (Tex. Crim. App. 1988); Peterson v. State, 836 S.W.2d 760, 765

(Tex. App.—El Paso 1992, pet. ref’d); Sneed v. State, 803 S.W.2d 833, 835-36 (Tex. App.—

Dallas 1991, pet. ref’d).

        The second context in which these conduct elements are considered is to

determine whether the offense is “complete” for Double Jeopardy purposes. Thus, it

has been held that aggravated assault is a result-oriented offense which is “complete

with the injury of a single individual.” Phillips v. State, 787 S.W.2d 391, 395 (Tex. Crim.

App. 1990); In re K.W.G., 953 S.W.2d 483, 486 (Tex. App.—Texarkana 1997, pet. denied).

This second context is more pertinent to our inquiry.

        Aggravated assault has not always been classified as a result-oriented offense.

Courts have, however, consistently classified aggravated assault by causing serious

bodily injury under section 22.02(a)(1) as a result-oriented offense. Landrian v. State, No.

PD-1561-07, 2008 WL 4489254, at *1 (Tex. Crim. App. Oct. 8, 2008); Phillips, 787 S.W.2d

at 395; Hall v. State, 145 S.W.3d 754, 758 (Tex. App.—Texarkana 2004, no pet.); see also




Johnson v. State                                                                      Page 8
Peterson, 836 S.W.2d at 765 (former offense of aggravated assault on peace officer by

causing bodily injury is result-oriented); Sneed, 803 S.W.2d at 835 (same).

        Conversely, aggravated assault by use of a deadly weapon under section

22.02(a)(2) has been classified as a conduct-oriented offense.         Landrian, 2008 WL

4489254, at *8 (Price, J., concurring); Hall, 145 S.W.3d at 758 (citing Guzman v. State, 988

S.W.2d 884, 887 (Tex. App.—Corpus Christi 1999, no pet.)). We do not wholly agree

with this characterization.    Rather, we hold that aggravated assault with a deadly

weapon under section 22.02(a)(2) is an offense which combines more than one “conduct

element” and that the primary focus of the offense (result-of-conduct or nature-of-

conduct) will vary depending on the nature of the underlying assault. Cf. Patrick v.

State, 906 S.W.2d 481, 491 (Tex. Crim. App. 1995) (“capital murder is a result of conduct

offense which also includes nature of circumstances and/or nature of conduct elements

depending upon the underlying conduct”).

        Thus, when assault by threat is alleged, as in Hall and Guzman, the focus is on the

nature of the defendant’s conduct, rather than the result of his conduct. See Hall, 145

S.W.3d at 758-59; Guzman, 988 S.W.2d at 887. But when as here it is alleged that the

defendant caused bodily injury, the primary focus remains on the result of the

defendant’s conduct, even if he uses or exhibits a deadly weapon during the

commission of the assault. See Landrian, 2008 WL 4489254, at *1 (“The gravamen of this

result-oriented offense is ‘causing bodily injury.’”); cf. Patrick, 906 S.W.2d at 491.

Therefore, we hold that aggravated assault by causing bodily injury, accompanied by

the use or exhibition of a deadly weapon, is a result-oriented offense which also


Johnson v. State                                                                      Page 9
includes a nature-of-conduct element, namely, the defendant’s use or exhibition of the

deadly weapon.

        Because the focus of the offense remains on the result and because the statute

requires that a deadly weapon be used or exhibited “during the commission of the

assault,” the evidence must show that the defendant used or exhibited the weapon at

some point at or before the offense is complete (i.e., at or before the time the

complainant sustains bodily injury). See Phillips, 787 S.W.2d at 395; K.W.G., 953 S.W.2d

at 486; cf. Curry, 30 S.W.3d at 406 (because “[a]n abduction is a continuous, ongoing

event,” the jury could find that the defendant used or threatened to use deadly force at

any point during the course of the abduction). This interpretation finds support in at

least two cases which have focused on the “during the commission” language.

        In Johnson v. State, the Court of Criminal Appeals reviewed a jury verdict to

determine whether the jury’s answers regarding Johnson’s use of a deadly weapon

were fatally conflicting. 777 S.W.2d 421, 421 (Tex. Crim. App. 1989). There, the jury

found Johnson guilty of aggravated sexual assault while using or exhibiting a deadly

weapon “in the course of the same criminal episode.” Id. at 422. However, the jury

refused to find in response to a special issue that he used or exhibited a deadly weapon

“in the commission of the offense.” Id.3

        According to the testimony, Johnson accosted the complainant at gunpoint and

ordered her into his taxi.         He drove her to several locations before parking at an


3
        According to the lower court’s opinion, this special issue was submitted under article 42.12, § 3g
of the Code of Criminal Procedure to determine Johnson’s parole eligibility. See Johnson v. State, 738
S.W.2d 307, 308 (Tex. App.—Houston [14th Dist.] 1987), rev’d, 777 S.W.2d 421 (Tex. Crim. App. 1989).


Johnson v. State                                                                                  Page 10
apartment complex where he sexually assaulted her. She did not see the gun during the

sexual assault. Id. The Court of Criminal Appeals explained why the jury’s findings

were not in conflict.

               It is rational to find that the jury differentiated as to the meaning
        and substance between these two submissions simply because they had
        already determined that appellant had exhibited or used a deadly weapon
        during the “criminal episode,” and was guilty of aggravated sexual
        assault, and then immediately thereafter they were asked if the appellant
        used or exhibited a deadly weapon during the “commission of the
        offense.”

               It is readily apparent that a juror could rationally interpret this to
        mean that a further disparate determination on the deadly weapon issue
        was necessary. It is reasonable to find that the jury correctly determined
        the appellant had exhibited a deadly weapon during the course of the
        criminal conduct in question, i.e. during the “criminal episode,” but that
        he did not exhibit the deadly weapon during the actual physical sexual
        attack itself, i.e. during the “commission of the offense.” Under this
        reasonable explanation, the jury’s verdict and their answer to the special
        issue are not in conflict.

Id. at 423.

        And in Wade v. State, this Court focused on the term “and” as used in section

22.02(a)(2) where the statute declares that it is an offense to assault someone “and” use

or exhibit a deadly weapon “during the commission of the assault.” Wade v. State, 951

S.W.2d 886, 889 (Tex. App.—Waco 1997, pet. ref’d) (citing TEX. PEN. CODE ANN. §

22.02(a)(2)). We explained that the term “and” here means “as well as” or “at the same

time.” Id. We observed that under this statute the deadly weapon “must be used [or

exhibited] at the same time as the assault.” Id.

        The definitions of the terms “use” and “exhibit” in this context are well

established.


Johnson v. State                                                                        Page 11
        [T]he word “use” typically means that a deadly weapon must be “utilized,
        employed, or applied in order to achieve its intended result ‘the
        commission of a felony offense or during immediate flight therefrom,’”
        that “use” could mean “any employment of a deadly weapon, even simple
        possession, if such possession facilitates the associated felony.”


Coleman v. State, 145 S.W.3d 649, 652 (Tex. Crim. App. 2004) (quoting Patterson v. State,

769 S.W.2d 938, 941 (Tex. Crim. App. 1989)). “The word ‘exhibit,’ however, requires a

weapon to be ‘consciously shown, displayed, or presented to be viewed.’” Id.

        To summarize, the indictment alleges that Johnson caused bodily injury to Genco

by striking her with his hand and that he used or exhibited a deadly weapon (a piece of

glass) during the commission of this assault. Therefore, to obtain a conviction under

this indictment, the evidence must show that Johnson used or exhibited the piece of

glass “at the same time as” he struck Genco with his hand. See Wade, 951 S.W.2d at 889;

see also Johnson, 777 S.W.2d 423.

                                       Application

        Viewed in the light most favorable to the verdict, the record contains evidence

that Johnson struck Genco with his hand two times during the episode. From Genco’s

testimony, she “blacked out” both times. Thus, the record contains evidence of two

separate assaults by Johnson which resulted in bodily injury to Genco and which are

consistent with (and thus “authorized by”) the allegations of the indictment. See Malik,

953 S.W.2d at 240; Lockwood, 237 S.W.3d at 431; Sartain, 228 S.W.3d at 421; see also Curry,

30 S.W.3d at 404.     But did Johnson use or exhibit the piece of glass during the

commission of either assault?



Johnson v. State                                                                    Page 12
        Juries are permitted “to draw multiple reasonable inferences as long as each

inference is supported by the evidence presented at trial. However, juries are not

permitted to come to conclusions based on mere speculation or factually unsupported

inferences or presumptions.” Hooper, 217 S.W.3d at 15. Viewed in the light most

favorable to the verdict, the jurors could reasonably infer that Johnson already had the

piece of glass in his possession when he hit Genco in the jaw the first time. However, it

would be mere speculation, unsupported by any direct or circumstantial evidence, for a

juror to conclude that Johnson used or exhibited the piece of glass during the

commission of this assault.

        By contrast, Burns testified that Johnson had Genco “in a headlock with a piece

of glass applied to the side of her neck” as he dragged her through the dayroom.

McCormick similarly testified that she saw Johnson dragging Genco through the

dayroom with his hands “[a]round her throat with the piece of glass.” The fact that

Genco does not recall Johnson wielding a piece of glass at this juncture is not

dispositive. Cf. Herring v. State, 202 S.W.3d 764, 766 (Tex. Crim. App. 2006) (evidence

legally sufficient to prove use of deadly weapon where defendant told victim he had a

knife and threatened to kill her, even though she never saw knife). Therefore, viewing

the testimony in the light most favorable to the verdict, the jurors could reasonably infer

that Johnson was holding the glass against Genco’s neck when he hit her the second

time.




Johnson v. State                                                                    Page 13
        For these reasons, we hold that the evidence is legally sufficient to support the

jury’s finding that Johnson used or exhibited a deadly weapon during the commission

of the assault. Accordingly, we overrule Johnson’s first issue.

                                       Impeachment Evidence

        Johnson contends in his second issue that the court abused its discretion by

allowing the State to impeach him with his 2002 conviction for aggravated assault of a

public servant because the probative value of this evidence is outweighed by the danger

of unfair prejudice.

        We review a court’s decision to admit or exclude evidence under an abuse-of-

discretion standard.        Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006).

Evidence of a prior conviction is admissible to impeach a witness’s testimony if the

conviction is for a felony or a crime involving moral turpitude and the court determines

that the probative value of this evidence outweighs its prejudicial effect.4 TEX. R. EVID.

609(a). The familiar Theus factors are employed to conduct this balancing process. Berry

v. State, 179 S.W.3d 175, 180 (Tex. App.—Texarkana 2005, no pet.) (citing Theus v. State,

845 S.W.2d 874 (Tex. Crim. App. 1992)); Moore v. State, 143 S.W.3d 305, 312-13 (Tex.

App.—Waco 2004, pet. ref’d) (same). Those factors include: (1) the impeachment value

of the prior crime; (2) the temporal proximity of the past crime relative to the charged

offense, and the witness’s subsequent history; (3) the similarity between the past crime

and the offense being prosecuted; (4) the importance of the defendant’s testimony; and

4
         If more than ten years have elapsed since the date of the conviction or of the witness’s release
from confinement for that conviction, whichever is later, then the conviction is admissible only if the
court determines that the probative value of the conviction “substantially outweighs its prejudicial effect.”
TEX. R. EVID. 609(b) (emphasis added).


Johnson v. State                                                                                     Page 14
(5) the importance of the credibility issue. Theus, 845 S.W.2d at 880; Berry, 179 S.W.3d at

180; Moore, 145 S.W.3d at 312-13.

        Here, because the prior conviction involves violence rather than deception, the

impeachment value of the conviction is low, and thus the first factor does not favor the

admissibility of the evidence. See Theus, 880 S.W.2d at 881; Berry, 179 S.W.3d at 180;

DeLeon v. State, 126 S.W.3d 210, 215 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d,

untimely filed). Johnson concedes that the temporal proximity of the prior offense

favors its admission. See Theus, 880 S.W.2d at 881; Berry, 179 S.W.3d at 180.

        Regarding the similarity of the prior offense, the State states that “it is impossible

to say exactly how similar the offenses are” because “no details of the prior offense

were given.” However, Johnson testified under cross-examination that the prior offense

was an assault on a prison guard. Thus, because of the similarity of the offenses, this

factors weighs against the admissibility of the prior offense. See Berry, 179 S.W.3d at

180; DeLeon, 126 S.W.3d at 215.

        We agree with the State, however, that the final two factors favor the

admissibility of the evidence. The only disputed issue at trial was whether Johnson

used or exhibited a piece of glass as a deadly weapon during the commission of the

assault. Virtually all of the State’s witnesses testified that he did. Johnson testified that

he did not. The complainant Genco did not recall Johnson using or exhibiting the piece

of glass either time he struck her with his hand. The physical evidence does not

support the State’s theory that he used or exhibited a piece of glass “during the

commission” of either assault. Therefore, Johnson’s testimony and his credibility were


Johnson v. State                                                                       Page 15
important because his defensive theory pitted his testimony and the physical evidence

which tended to support his testimony against the testimony of the State’s witnesses.

See Theus, 845 S.W.2d at 881; Berry, 179 S.W.3d at 180.

        Accordingly, we cannot say that the court abused its discretion by allowing the

State to impeach Johnson with this prior conviction. Thus, we overrule Johnson’s

second issue.

        We affirm the judgment.



                                                          FELIPE REYNA
                                                          Justice
Before Chief Justice Gray,
       Justice Vance, and
       Justice Reyna
       (Chief Justice Gray concurring with note)*
Affirmed
Opinion delivered and filed October 22, 2008
Publish
[CRPM]


*      (“Chief Justice Gray concurs in the judgment which affirms Johnson’s conviction.
He joins no part of the opinion of the Court. A separate opinion will not issue. He
notes, however, the efforts to dissect the event into discrete parts is unnecessary and
will be an issue we will undoubtedly have to revisit.”)




Johnson v. State                                                                Page 16
