             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                       NO. PD-1187-07



                                IVAN JOHNSON, Appellant

                                                v.

                                  THE STATE OF TEXAS

           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE THIRD COURT OF APPEALS
                             LLANO COUNTY

      C OCHRAN, J., delivered the opinion of the Court in which M EYERS, P RICE,
W OMACK, J OHNSON, and H OLCOMB, JJ., joined. K ELLER, P.J., filed a dissenting
opinion in which H ERVEY, J., joined. K EASLER, J., filed a dissenting opinion in
which K ELLER, P.J., and H ERVEY, J., joined.

                                           OPINION

       Appellant asks whether a trial judge has the discretion to impose jail time as a

condition of community supervision immediately after he has heard unsworn, un-cross-

examined victim-allocution statements that they wanted appellant to go to jail.1 The answer


       1
         Appellant’s sole ground for review is:
       The court of appeals erred in holding that a trial court can, under Article 42.12 § 12(c) of
       the Code of Criminal Procedure, modify the conditions of a defendant’s probation to
       require 180 days in jail after victim allocution under Article 42.03 § 1(b) of the Code of
       Criminal Procedure.
                                                                             Johnson     Page 2

is no. The pertinent statute is both clear and explicit: Article 42.03 requires that the victim-

allocution statement be read after the sentence has been imposed and “after the court has

announced the terms and conditions of the sentence.” 2 This error was not harmless. We

therefore reverse the court of appeals, which had held that error, if any, was harmless because

the trial court retained authority to modify and amend the conditions of probation at any time

during the period of community supervision.3

                                               I.

       In this case, appellant was charged with two counts of indecency with a child. The

jury acquitted him of the count involving Savannah, but convicted him of the count involving

Brittany. The jury then assessed his punishment at five years’ imprisonment and a fine of

$5,000, but further recommended that both the fine and the imprisonment be probated and

that appellant be placed on community supervision. The trial judge accepted the jury’s

punishment verdict and imposed the “standard” conditions of community supervision,

including sex-offender registration. After the judge completed his oral pronouncement of

the sentence and community supervision conditions,4 he permitted the mothers of both

       2
        T EX . CODE CRIM . PROC. art. 42.03, § 1(b)(2) (emphasis added).
       3
          Johnson v. State, 240 S.W.3d 76, 79 (Tex. App.—Austin 2007) (“The court below was
and remains authorized to impose jail time as a condition of appellant’s community supervision
at any time during the five-year supervision period. Under the circumstances, if the court’s
determination to impose the jail time condition was made after the victim statements were made,
it was at most harmless error.”).
       4
        The record shows that the trial court completed his sentencing before the allocution
statements.
Court:        This trial began on Monday, the 25th of September. It is concluded today, which
                                                                               Johnson     Page 3

children to give an oral allocution statement in open court pursuant to Article 42.03, § 1(b).

Brittany’s mother also read Brittany’s statement out loud. Then the trial judge read a

statement written by Savannah out loud, even though appellant had been acquitted of

molesting her.5

       Immediately thereafter, the trial judge imposed additional conditions of probation,

including the requirement that appellant sell his home 6 and that he serve 180 days in the

county jail. Appellant objected; he filed a bill of exceptions because Article 42.03 prohibits

the court reporter from recording victim-allocution statements;7 and he obtained an adverse


               is September 28th with the jury assessing punishment at five years probation and a
               fine of $5,000, probated also. Know of any legal reason why we shouldn’t
               pronounce sentence, [defense counsel]?
Defense:       No.
Court:         State?
State:         The State has no reason.
Court:         Then it is the sentence of this Court that you be placed on probation for a term of
               five years and a fine of $5,000 that will be probated also. You will be placed
               upon the standard conditions of probation and the ones [that] apply to sex
               offenders. You’ll also have to register as a sex offender.
               ...
               So that will be the sentence of the Court.
       5
         When reading the punishment charge to the jury, the trial judge had admonished the jury
that they “cannot consider the evidence about the other girl, [Savannah] that y’all did not find
him guilty of.” The court of appeals noted, “In light of appellant’s acquittal on count one, one
might question whether [Savannah] was a victim within the meaning of article 42.03. Appellant
does not raise this issue, and we express no opinion on the matter.” Johnson, 240 S.W.3d at 78
n.2.
       6
          Appellant did not object to this condition because the evidence at the punishment
hearing showed that he had already moved away. Defense counsel told the jury that “he’s going
to sell the home, sell his house. He has no intention of ever going back to Sandy Harbor.”
       7
        T EX . CODE CRIM . PROC. art. 42.03, § 1(b) (“The court reporter may not transcribe the
[victim’s post-sentencing] statement”).
                                                                              Johnson     Page 4

ruling from the trial court.8 He properly preserved error.

                                                   II.

       The court of appeals correctly noted that Article 42.03 allows “a victim statement only

after sentencing in order to alleviate any risk that the statement might affect the partiality of

the fact finder at the punishment phase.” 9 This statute is not ambiguous or difficult to

understand. The statute says that the victim’s statement “must be made . . . after the court

has announced the terms and conditions of the sentence; and after sentence is pronounced.” 10




       8
         Appellant’s counsel objected as follows:
Defense:      Judge, before the victims and their mothers were allowed to allocute, the law
              requires that you impose sentence before allocution takes place, and you did
              impose sentence earlier, and you did not impose a condition of probation of jail.
              It is improper for the Court to sit–not only sit through and listen to it, but you
              actually read one of the victim’s statements. And to then come in after that and
              re-impose sentence and–
Court:        I didn’t impose the terms and conditions of probation, though. I didn’t impose
              any terms and conditions of probation at that point in time.
Defense:      Well, we object to–we object to you imposing a condition of 180 days after you
              allowed the victims to allocute and you yourself read one of the victim’s
              statement. That is totally what–that’s exactly what the law is designed to prevent
              is for you from being swayed by what may have been inadmissible evidence and
              then go back and sentence the defendant and we object to that.
Court:        And I think the Court presumes that–the appellate court presumes that the trial
              court does not consider inadmissible evidence, but this Court sat through the
              whole trial and heard all of the evidence that was in the trial, which clearly
              included what I read and what basically was stated. I mean, the Court could
              logically deduce most of what was read in that victim impact statement. That did
              not influence this Court to determine to sentence him to 180 days in the county
              jail because I had not imposed what conditions of probation I was going to
              impose. I just read that’s what the jury did and they recommended it be probated.
       9
           Johnson, 240 S.W.3d at 78.
       10
        T    EX . CODE   CRIM . PROC. art. 42.03, § 1(b) & (b)(2) & (b)(3).
                                                                                    Johnson     Page 5

Only after the entire sentencing procedure is complete 11 –when it is not possible for anyone

to think that unsworn, uncross-examined testimony could affect the trial judge’s sentencing–

may the victim deliver a statement to the defendant, the court, and the public. The term

“after sentence is pronounced” does not mean that a first sentencing is a prelude to a second

sentencing after the victim-allocution statement.

       It is widely acknowledged by commentators that victim-allocution statements are to

have “no effect” upon the jury or judge’s decision making.12 What does “no effect” mean?


       11
           See Gifford v. State, 980 S.W.2d 791, 793-94 (Tex. App.—Houston [14th Dist.] 1998,
pet. ref’d) (finding reversible error when the defense attorney failed to object to the victim’s
father’s unsworn victim-allocution statement given before the trial judge assessed punishment,
and stating that, under Article 42.03, “the legislature has severely limited the use and impact of
the statement by requiring that it be made after punishment has been assessed.”).
       12
           See 43 GEORGE E. DIX AND ROBERT O. DAWSON , TEXAS PRACTICE : CRIMINAL
PRACTICE AND PROCEDURE § 38.84 (2d ed. 2001) (victim allocution “is intended to have no
effect on decisions made in the criminal process”); D. MARK ELLISTON , 2 TEXAS PRACTICE
GUIDE : CRIMINAL PRACTICE AND PROCEDURE § 25:49 (2007) (“An oral victim [allocution] . . . is
an opportunity for the victim to vent his or her feelings. . . . The statement is not evidence and . . .
is intended to have no effect on decisions made in the criminal process”); KEN ANDERSON AND
JOHN BRADLEY , TEXAS SENTENCING § 10.2[b][6] (5th ed. 2007) (“After a judge has pronounced
sentence or imposed conditions of community supervision, a victim may appear in person and
tell the judge the victim’s views about the offense, the defendant, and the effect of the offense on
the victim.”); Andrew L. Johnson, Sentence Modification in Texas: The Plenary Power of a Trial
Court to Alter Its Sentence After Pronouncement, 38 ST . MARY ’S L.J. 317, 358-60 (2006) (noting
that victim-allocution statements are “one-sided affairs that may not be transcribed” and provide
“the crime’s victims an ability to address the court after the sentence is pronounced.”).
         As one commentator explained, the original victim allocution bill, House Bill 520,
was intended
         to allow crime victims to give such a statement before sentence pronouncement.
         However, there was concern expressed at the legislative hearings that victim
         allocution statements might have an impact on sentencing. Legislators amended
         the proposed Bill by allowing allocution only after sentence pronouncement.
         Thus, the legislature intended to place victim allocution statements after the trial
         judge’s pronouncement of the sentence to avoid any chance that the statement
         would affect the sentence given.
                                                                                  Johnson      Page 6

Does it mean that the trial judge may not increase the literal sentence, but he may add

whatever new terms and conditions he thinks appropriate based upon the unsworn, uncross-

examined victim-allocution statements? No. The whole purpose of requiring that these

statements be made after the sentencing stage is complete is to protect the trial judge and the

justice system from charges of partiality or any suggestion that these unsworn, uncross-

examined statements can or will sway the sentencing authority in any respect whatsoever.

       The timing of a victim’s allocution statement was obliquely addressed by two

members of this Court in a concurring opinion in State v. Aguilera,13 and directly addressed

by two other judges in a dissenting opinion in Aguilera.14 Although four members of the

Court have previously stated that a trial judge commits error if he changes, modifies, or alters

his sentence or the conditions of community supervision immediately after hearing a victim-

allocution statement,15 this is an issue of first impression for the Court as a whole.16



Johnson, Sentence Modification in Texas, 38 ST . MARY ’S L.J. at 360 (footnotes omited).
       13
           165 S.W.3d 695, 699, 703 (Tex. Crim. App. 2005) (Cochran, J., concurring, joined by
Price, J.) (stating that a trial judge’s decision to resentence a defendant would be “illegal” if it
“was based upon a statutorily prohibited consideration of the victim impact sentence,” but noting
the Court could not address that question because it was not presented in the State’s appeal).
       14
          165 S.W.3d at 706 (Keasler, J., dissenting, joined by Hervey, J.) (“[The] ‘Legislature
specifically enacted Article 42.03 to allow victim statements only after sentencing in order to
alleviate any risk that the statement would affect the partiality of the fact finder at the punishment
phase’”) (quoting Garcia v. State, 116 S.W.3d 401, 408 (Tex. App.—El Paso 2000, pet. ref’d)).
       15
          Here, as in Aguilera, the fact that the modification of appellant’s conditions of
community service came immediately on the heels of the trial court’s reading of the victim’s
allocution statement appears more than fortuitous. As Judge Keasler noted in his Aguilera
dissent:
        This statement defies credibility. It is remarkably coincidental that the judge
                                                                                Johnson     Page 7

       The court of appeals avoided this issue by holding that it was at most harmless error

because the trial court retained authority to modify or amend the conditions of probation at

any time during the period of community supervision.17 There are two problems with this

conclusion.

       First, the trial judge did not modify or amend the conditions of community

supervision. Indeed, the trial judge said that he was “imposing” jail time as a part of the

“terms and conditions of probation;” he did not state that he was “amending” or “modifying”

his original probation conditions.18 The “180 days in jail” condition was made part of the

original written judgment and was signed on the same day as the original sentencing. The

only intervening event between the original pronouncement of sentence and conditions of

community supervision and the pronouncement of the “180 days in jail” condition was the

victim-allocution statements asking for the appellant to go to jail. After the defense attorney

objected to the imposition of this post-allocution condition, the trial judge stated that he


      chose to reduce [the defendant’s] sentence right after hearing the victim’s
      statement. I cannot condone this type of behavior. It seems an obvious attempt to
      circumvent Art. 42.03.
165 S.W.3d at 706 (Keasler, J., dissenting).
       16
          In Aldrich v. State, ___ S.W.3d ___, No. 2-05-303-CR, 2008 WL 5057647, at *29-31
(Tex. App.—Fort Worth Nov. 26, 2008, no pet. h.), the Fort Worth Court of Appeals held that it
was harmful error, in violation of article 42.03, for the victims to give unsworn victim-allocution
statements before the trial court assessed punishment. See also Gifford, 980 S.W.2d at 793-94
(ineffective assistance of counsel when counsel failed to object as victim’s father gave an
unsworn allocution statement before punishment was assessed).
       17
            Johnson, 240 S.W.3d at 79; see note 3 supra.
       18
            See note 8 supra.
                                                                                 Johnson     Page 8

would modify the sentence to delete this condition if the defense could show him that it was

illegal.19

        Second, the court of appeals’s “no harm, no foul” reasoning fails to acknowledge the

“any reason except a prohibited one” rule. The trial court does indeed retain authority to

impose confinement in jail as a condition of community supervision “at any time during the

supervision period.” Unless prohibited by law, he may do so for any reason and perhaps for

no reason. But just as a judge may not impose jail time as a condition of community

supervision solely because of the defendant’s race,20 he may not impose jail time as a

condition of community supervision for any other statutorily prohibited reason. If a litigant

is prohibited from making peremptory challenges based on a venireman’s race, it is

constitutional error for him to do so; it is of no moment that there might be other valid

reasons for striking that venireman if the party did, in fact, make his strike based on race.

If the trial judge is not permitted to amend the conditions of probation based on the victim’s

allocution statements, it is of no moment that he could have later amended those same

conditions based on a valid reason.




        19
           The trial judge stated:
        I’ll tell you what we’ll do. I’m going to leave my sentence intact. You can
        file–you can file a legal motion to show me that I can’t do that legally. And if I
        can’t do that legally, then I’ll file a judgment nunc pro tunc and amend the
        conditions of probation where he doesn’t have to do 180 days.
        20
           See Batson v. Kentucky, 476 U.S. 79, 89 (1986) (although a prosecutor is ordinarily
entitled to exercise his peremptory strikes for any reason, he may not challenge jurors solely on
account of their race).
                                                                              Johnson     Page 9

                                              III.

       We do not doubt the sincerity of the trial judge in this case. He stated, on the record,

that he did not modify appellant’s sentence because of any influence caused by the reading

of the victim-allocution statements.21 But the purpose of article 42.03, § 1(b) is to protect the

trial judge from any implicit or explicit accusations that he could be or would be influenced

by the victim-allocution statement. It is the appearance of possible influence, as much as the

possible fact of influence, that the statute guards against.

       Although the trial judge erred by violating the express terms of article 42.03, we are

confidant that the honorable judge will do what he promised to do if he knew that his

imposition of the “180-days-in-jail”condition was illegal: Delete it from the judgment. If

the trial judge finds that appellant is a less than perfect probationer, he may always amend

the conditions of community service to include jail time as long as that condition is not

inextricably connected to the victims’ allocution statements asking for jail time.

       We therefore reverse the judgment of the court of appeals and remand this case to the

trial court for further proceedings consistent with this opinion.

Delivered: June 17, 2009

Publish




       21
            See note 8 supra.
