                                                                                      ACCEPTED
                                                                                 06-14-00194-CR
                                                                       SIXTH COURT OF APPEALS
                                                                            TEXARKANA, TEXAS
                                                                            4/16/2015 8:54:14 PM
                                                                                 DEBBIE AUTREY
                                                                                          CLERK

                          No.06-14-00194-CR

                 IN THE SIXTH COURT OF APPEALS                   FILED IN
                                                          6th COURT OF APPEALS
                                                            TEXARKANA, TEXAS
                        at TEXARKANA, TEXAS               4/17/2015 8:46:00 AM
                                                              DEBBIE AUTREY
                                                                  Clerk


BENNIE JOHNSON, JR.
                                                           Appellant

vs.

THE STATE OF TEXAS
                                                           Appellee



          Appeal from the District Court of Bowie County, Texas
          102nd Judicial District




        BRIEF IN SUPPORT OF APPELLANT'S COUNSEL'S
        MOTION TO WITHDRAW (ANDERS BRIEF)




                                        Derric S. McFarland
                                        816 Pine Street
                                        Post Office Box 1048
                                        Texarkana, Texas 75504-1048
                                        Telephone: (903) 798-3547
                                        Telecopier: (888) 840-0138

                                        Attorney for Appellant
                                        Bennie Johnson, Jr.
                   INDENTITY OF PARTIES AND COUNSEL

       Pursuant to Texas Rule of Appellate Procedure 38.1(a), the following list is

a complete list of all parties to the trial court's judgment and the names and

addresses of all trial and appellate counsel:

      (1) Plaintiff, Appellee

          State of Texas

      (2)Defendant, Appellant

          Bennie Johnson, Jr.

      (3) Defendant's trial counsel

          Mr. John Stroud
          515 Main Street
          Texarkana, Texas 75501

      ( 4) Appellant's appellate counsel

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

      (5) State's trial and appellate counsel

          Mr. Jerry Rochelle
          Bowie County District Attorney's Office
          601 Main Street
          Texarkana, Texas 75501



                                            1
                                            1
                                                     TABLE OF CONTENTS

Identity of Parties and Counsel. ................................................................................. .ii

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

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

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

Issues Presented .......................................................................................................... 2

Statement of Facts ....................................................................................................... 2

Summary of the Argument ........................................................................................ 2

Argument ................................................................................................................... 2

ISSUE ONE: A defendant is entitled to effective assistance of counsel at
                      trial. Was Bennie Johnson, Jr. provided effective assistance
                      of
                counsel? ........................................................................................ 3

ISSUE TWO: An extraneous offense may be excluded if its relevance is
                     substantially outweighed by the danger of unfair prejudice.
                     Were extraneous offenses properly admitted by the trial
               court? ............................................................................................ 5

Prayer ......................................................................................................................... 7

Certificate of Service ................................................................................................. 8

Appendix
     A. Notice informing Bennie Johnson, Jr. of his right to respond to Motion to
        Withdraw as Counsel within thirty days .................................................... 9




                                                                111
                                    INDEX OF AUTHORITIES


CASES:                                                                                                    PAGE

Corley v. State,
      987 S.W.2d 615 (Tex.App.-Austin 1999, no pet.)                                       ................... 6

Currie v. State,
      516 S.W.2d 684 (Tex. Crim. App. 1974)                                              .................. 3
Hernandez v. State,
     726 S.W.2d 53 (Tex. Crim. App. 1986)
                                                                                           ................... 4
High v. State,
      573 S.W.2d 807 (Tex. Crim. App. 1978)
                                                                                          .................. 3
Jackson v. State,
      877 S.W.2d 768 (Tex. Crim. App. 1994)
                                                                                          .................. 4

Johnson v. State,
      691 S.W.2d 619 (Tex. Crim. App. 1984) cert. denied, 474 U.S. 865, 88
      L.Ed. 2d 152, 106 S.Ct 184 (1985) ..................................................................... .4

Johnson v. State,
      932 S.W.2d 296 (Tex.App-Austin 1996, pet. ref'd)                                    ................... 6

Montgomery v. State,
      810 S.W.2d 372 (Tex. Crim. App. 1991)                                              .................... 5
Moreno v. State,
     858 S.W.2d 453 (Tex.Crim.App. 1993)
                                                                                          ................... 6
Moore v. State,
     694 S.W.2d 528 (Tex. Crim. App. 1985)
                                                                                         .................. 4

Randle v. State,
      760 S.W.2d 30 (Tex. App.-Houston [1 st. Dist.] 1988, no pet.) ............................ 3
                                                       IV
Strickland v. Washington,
       466 U.S. 668, 80 L. Ed. 2d 674, 104 S.Ct. 2052 (1984) ............................... .4

Wilson v. State,
      955 S.W.2d 693 (Tex. App.-Waco 1997, order), disp. on merits,
      3 S.W.3d 223 (Tex. App.-Waco 1999, pet. ref'd) ........................................... 2

RULES

Texas Rules of Evidence 404(b)                                                 ................... 5

Texas Rules of Evidence 403                                                    ................... 6

STATUTES

Texas Penal Code section 22.021                                                ................... 1




                                                 v
                            STATEMENT OF THE CASE


       This is an appeal from a conviction for Aggravated Sexual Assault in

violation of Texas Penal Code section 22.021, a first degree felony, in trial court

number 12F0821-102 and appeal number 06-14-00194-CR. (C.R. 06-14-00194-CR

pg. 78). A jury found Johnson guilty and assessed a punishment of life. (C.R. 06-

14-00 194-CR pg. 78).

                 ISSUES PRESENTED
ISSUE ONE:
                 A defendant is entitled to effective assistance of counsel at trial.

                 Was Johnson provided effective assistance of counsel?
ISSUE TWO:
                 An extraneous offense may be excluded if its relevance IS

                                    substantially outweighed by the danger of unfair

                                    prejudice.

                                    Were extraneous offenses properly admitted by the trial

                                    court?

                               STATEMENT OF FACTS

       Bennie Johnson, Jr. was arrested for Aggravated Sexual Assault. (C.R. 06-


14-00194-CR pgs. 18 and 19; and R.R. Vol. II pg. 4 et seq.). Johnson entered a

plea of not guilty to the charge and submitted his case to the court. (R.R. Vol. II

pg. 4 and R.R. Vol. VIII pg. 10). After a jury trial, Johnson was convicted on the

charge. (C.R. 06-14-00194-CR pg. 78). Upon the conclusion of the punishment

trial, Johnson was then sentenced to life in the Texas Department of Criminal
1
Justice-Institutional Division. (C.R. 06-14-00194-CR pg. 78).

                        SUMMARY OF THE ARGUMENT


      Appellate counsel can locate no arguable grounds for appeal. Therefore,

pursuant to Anders v. California, counsel reviews two possible points of error.

However, each appears groundless.

      Bennie Johnson, Jr. was represented by counsel at the trial. Counsel took an

active part and appears to have provided effective assistance of counsel.

      Extraneous offenses were allowed to be introduced to the jury during the

guilt/innocence phase of the trial. It appears that the extraneous offenses were

properly admitted as rebuttal upon Johnson proffering a defensive theory that the

complainant had engaged in consensual sex and subsequently fabricated the charge

of aggravated sexual assault.



                                    ARGUMENT


      Appellate counsel can locate no arguable grounds for appeal and, therefore,

files this Anders briefwith a corresponding Motion To Withdraw with this Court.

      A copy of this brief in support of Appellant's Counsel's Motion to Withdraw

and the corresponding motion has been forwarded to Bennie Johnson, Jr. Johnson

has also been advised that he has thirty days to file a pro se response or a motion

                                           2
requesting an extension of time in which to file the response pursuant to Wilson v.

State, 955 S.W.2d 693 (Tex. App.-Waco 1997, order), disp. on merits, 3 S.W.3d

223 (Tex. App.-Waco 1999, pet. ref'd). See Appendix "A" to Appellant's

Counsel's Motion to Withdraw.

       Counsel on appeal has thoroughly read and reviewed the entire appellate

record in search of any arguable grounds of error to raise which would support

either a reversal of Johnson's conviction or some other relief for Johnson which are


within the trial court's limited grant of appellate right. After due diligence

reviewing the appellate record and researching the potential grounds for appeal,

appellate counsel is unable to fmd any error which he, in good faith, can urge

warranting a reversal of this conviction or in support of any other form of relief for

Johnson. Appellate counsel is aware that he has a duty to advance all arguable

ground of error that would afford Johnson a reversal of his conviction or any other

relief which are within the trial court's limited grant of appellate right. Regardless,

pursuant to High v. State, counsel must demonstrate why there are no arguable

grounds to be advanced. 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); Currie v.

State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Randle v. State, 760 S.W.2d 30,32

(Tex. App.-Houston [1st. Dist.] 1988, no pet.). Therefore, Appellant's Counsel

presents the following issues reviewed:

                                             3
ISSUE ONE:          A defendant is entitled to effective assistance of counsel at trial.
                    Was Bennie Johnson, Jr. provided effective assistance of
                    counsel?

      A claim of ineffective assistance of counsel is examined by the standard

enunciated in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct.

2052 (1984), and adopted by the Texas Court of Criminal Appeals in Hernandez v.

State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). That standard requires the

appellant to show (1) his counsel's representation fell below an objective standard

of reasonableness, and (2) a reasonable probability exists that, but for counsel's

unprofessional errors, a different outcome would have resulted. Jackson v. State,

877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

      The burden is on the appellant to prove his ineffectiveness claim by a

preponderance of the evidence. Moore v. State, 694 S.W.2d 528,531 (Tex. Crim.

App. 1985). The court looks to the totality of the representation to determine

whether counsel provided effective assistance. Moore v. State, 694 S.W.2d 528,

531 (Tex. Crim. App. 1985). However, a court strongly presumes counsel's

competence, but appellant can rebut this presumption by showing his attorney's

representation was unreasonable under prevailing professional norms. See Jackson

v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Finally, the appellate

record must support a claim of ineffective assistance. See Johnson v. State, 691

                                            4
S.W.2d 619, 627 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865, 88 L. Ed. 2d

152, 106 S.Ct. 184 (1985).

      In the case at bar, appointed trial counsel appeared at the trial. (R.R. vol.

VII, pg. 4). Counsel cross examined the state's witnesses (R.R. vol. VIII pgs. 31,

50, 66, 84, 99, 119, 133, 136, 159 and R.R. vol IX, pgs. 18, 37) and presented

defendant to testify and elicited testimony. (R.R. vol. VIII, pg. 171). Additionally

the trial counsel presented an alternative theory as a defense to the case. (R.R. vol.

VIII, pgs. 15, 171). Bennie Johnson, Jr.'s trial counsel made opening (R.R. vol.

VIII, pgs. 15) and closing statements. (R.R. vol. IX, pgs. 61).



      ISSUE TWO:             Was it proper for the trial court to admit the extraneous
                             offenses?

      Texas Rules of Evidence 404(b) states that evidence of other crimes or

wrongs by the defendant is not admissible if it is relevant only to prove the

character of the defendant in order to show that he acted in conformity therewith.

The issue of whether extraneous offense evidence is admissible was considered by

the Texas Court of Criminal Appeals in Montgomery v. State of Texas. The court

held that to be admissible, extraneous offense evidence must be relevant apart from

indicating mere character conformity, that is, it must tend to establish some

elemental or evidentiary fact or rebut some defensive theory. Montgomery v. State,

                                               5
810 S.W.2d 372,386-87 (Tex. Crim. App. 1991); Tex R. Evid. 404(b). Even ifan

extraneous offense is relevant apart from character conformity, it may still be

excluded if its relevance is substantially outweighed by the danger of prejudice.

Montgomery, 810 S.W.2d at 387; Johnson v. State, 932 S.W.2d 296, 303

(Tex.App-Austin 1996, pet. ref d); Tex. R. Evid. 403. "Questions of relevance

should be left largely to the trial court, relying on its own observations and

experience, and will not be reversed absent an abuse of discretion." Moreno v.

State, 858 S.W.2d 453, 463 (Tex.Crim.App. 1993); Corley v. State, 987 S.W.2d

615,618 (Tex.App.-Austin 1999, no pet.).

              In the case at bar, the State called two witnesses who testified to

similar fact situations with appellant (R.R. vol. IX, pgs. 8, 30). Both occurrences

detailed how the appellant offered to give the witnesses a ride but then made up an

excuse to deviate from the route (R.R. vol. IX, pgs. 8, 25, 30, 39). They each went

on to state that the appellant sexually assaulted them in a dark, remote location

before driving off without them (R.R. vol. IX, pgs. 8,25, 30, 39). The witnesses'

personal lives were also of a similar nature. Each described having a drug

addiction and experiencing the same socioeconomic troubles which led the State to

theorize that appellant targeted certain females that might be less likely to report

their victimization (R.R. vol. VIII, pgs. 182, 184).

                                                6
                                     PRAYER

      WHEREFORE, premises considered, appellate counsel respectfully requests

that Appellant's Counsel's Motion to Withdraw as Counsel be granted.



                                              Respectfully submitted,


                                             /s/ Derric S. McFarland
                                         By: ____________________________ _
                                             Derric S. McFarland
                                             Texas Bar No. 24048646
                                             816 Pine Street
                                             P.O. Box 1048
                                             Texarkana, Texas 75504-1048
                                             Telephone: 903-798-3547
                                             Facsimile: 888-840-0138


                                              ATTORNEYS FOR APPELLANT
                                              BENNIE JOHNSON, JR.


                     CERTIFICATE OF COMPLIANCE

      Pursuant to the Tex. R. App. P. 9.4, I hereby certify that this brief
contains 1,336 words (excluding the caption, table of contents, table of
authorities, signature, proof of service, certification and certificate of
compliance). This is a computer-generated document created in Microsoft
Word, using 14 point typeface for all text. In making this certificate of
compliance, I am relying on the word count provided by the software used
to prepare the document.
                                              /s/ Derric S. McFarland
                                       By:
                                              Derric S. McFarland
                                          7
                                               Texas Bar No. 24048646
                                               816 Pine Street
                                               P.O. Box 1048
                                               Texarkana, Texas 75504-1048
                                               Telephone: 903-798-3547
                                               Facsimile: 888-840-0138

                                               ATTORNEYS FOR APPELLANT
                                               BENNIE JOHNSON, JR.


                          CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing Brief in Support of
Appellant's Counsel's Motion to Withdraw (Anders Brief) has this 14 day of April,
2015, been forwarded by the United States Postal Service to the following:

Appellant
Mr. Bennie Johnson, Jr.
SID # 08641019
Stiles Unit
3060 FM 3514
Beaumont, TX 77705

Trial Court Judge
Hon. Bobby Lockhart
710 James Bowie Drive
New Boston, Texas 75570

State's Attorney
Ms. Kelley Crisp
Bowie County District Attorney
601 Main Street
Texarkana, Texas 75501
                                               /s/ Derric S. McFarland

                                               Derric S. McFarland

                                           8
                          APPENDIX



                               A.

Notice Informing Bennie Johnson, Jr. of his right to respond to
"Motion to Withdraw as counsel" within thirty days.




                                9
                    McFARLAND LAW OFFICE
                    DERRIC   s. MCFARLAND
                    ATTORNEY AND COUNSELOR AT              LAw

8 1 6 PINE STREET                                      TELEPHONE: 903-798-3547
P.O. Box 1048                                          FACSIMILE: 1 -888-840-0 1 38
TEXARKANA, TEXAS    75504                              McF ARLAND.ATTY@GMAIL.COM




                                     April 14,2015

Mr. Bennie Johnson, Jr.
TDCJ-ID# 01970053
Stiles Unit
3060 FM 3514
Beaumont, TX 77705


      Re:    State of Texas vs. Bennie Johnson, Jr.; Trial Court Cause No.
                     12F0821-102 - 102nd District Court of Bowie County, Texas;
                     Appellate Cause No. 06-14-00194-CR


Dear Mr. Johnson:

        As you are aware, I was appointed by Judge Bobby Lockhart on or about
October 17,2015, to represent you in the above referenced appeal.

       I have thoroughly read and reviewed the Clerk's Record and Reporter's
Record in Appeal One in search of any arguable grounds of error to raise which
would support either a reversal of your conviction or some other relief for you.
After due diligence of the appellate record and researching the potential grounds
for your appeal, I am unable to find any error which I, in good faith, can urge
warranting a reversal of this conviction or in support of any other form of relief for
you. Therefore, pursuant to Anders v. California, 386 U.S. 738 (1967), I filed
Appellant's Counsel's Motion to Withdraw and a Brief in Support of Appellant's
Counsel's Motion to Withdraw (Anders Brief) asking the Sixth District Court of
Appeals to permit me to withdraw from my representation of you. Please find a
copy of this motion and brief enclosed.
       Pursuant to Wilson v. State, I must advise you that you have thirty days
from the date the enclosed motion and brief are filed with the Sixth District
Court of Appeals to file a pro se response or a motion requesting an extension
of time in which to file a response with the Court of Appeals. Wilson v. State,
955 S.W.2d 693 (Tex. App.-Waco 1997, order), disp. On merits, 3 S.W.3d 223
(Tex. App.-Waco 1999, pet. ref d). Please also find enclosed the entire reporter's
and clerk's records in order that you may prepare your own brief.

       I am sorry that I was unable to locate any arguable points of error to present
to the Sixth District Court of Appeals on your behalf with regard to this appeal. If
I can answer any questions, please contact me.

                                                Sincerely,


                                                /s/ Derric S. McFarland




DSM
Enclosures
