                                                                         ACCEPTED
                                                                     05-15-00347-CR
                                                          FIFTH COURT OF APPEALS
                                                                     DALLAS, TEXAS
                                                                9/18/2015 1:48:01 PM
                                                                          LISA MATZ
                                                                              CLERK




                                                                                            5th Court of Appeals
                                                                                             FILED: 9/22/2015
                                                                         Lisa Matz, Clerk
                             ORAL ARGUMENT REQUESTED

                                                  RECEIVED IN
                                             5th COURT OF APPEALS
       CAUSE NO. 05-15-00347-CR                  DALLAS, TEXAS
                                             9/18/2015 1:48:01 PM
               IN THE                              LISA MATZ
                                                     Clerk
          COURT OF APPEALS
       FIFTH DISTRICT OF TEXAS
              AT DALLAS

***************************************

             OJAY JOHNSON,
                     Appellant

                     v.

         THE STATE OF TEXAS

***************************************

   On Appeal from the 195th District Court
           Dallas County, Texas
    Trial Court Cause No. F13-47079-N

***************************************

          BRIEF OF APPELLANT

***************************************

                          Lawrence B. Mitchell
                          SBN 14217500
                          P.O. Box 797632
                          Dallas, Texas 75379
                          Tel. No.: 214.870.3440
                          E-mail: judge.mitchell@gmail.com

                          ATTORNEY FOR APPELLANT
                          IDENTITY OF PARTIES

Trial Judge: the Honorable Judge Fred Tinsley, presiding.

Parties:

      Appellant: Ojay Johnson

      Appellee:    The State of Texas and Dallas County, Texas

Trial Counsel:

      Attorney for Defendant/Appellant:

            Bernard Nwaiwu
            P.O. Box 744155
            Dallas, Texas 75374


      Trial Attorneys for the State:   Mr. Dimitrios Anagnostis
                                       and Ms. Kishwer Lakhani
                                       133 N. Riverfront Blvd.
                                       Dallas, Texas 75207

Appellate Counsel:

      Attorney for Appellant: Lawrence B. Mitchell
                              P.O. Box 797632, Dallas, Texas, 75379

      Attorneys for the State/Appellee:

            Ms. Susan Hawk, Criminal District Attorney, Dallas County, Texas,
            Assistant District Attorney Lori Ordiway,       or her designated
            representative on appeal, 133 North Riverfront Blvd., Dallas, Texas
            75207


                                          i
                                   TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL.............................................................i

INDEX OF AUTHORITIES......................................................................................ii

STATEMENT OF THE CASE...................................................................................2

ISSUES PRESENTED................................................................................................2

STATEMENT OF FACTS.........................................................................................3

SUMMARY OF THE ARGUMENTS.......................................................................4

ARGUMENT AND AUTHORITIES........................................................................5

        APPELLANT’S ISSUE NO. I..........................................................................5

                 APPELLANT HAS BEEN DENIED THE EFFECTIVE
                 ASSISTANCE OF COUNSEL IN VIOLATION OF
                 THE FOURTEENTH AND SIXTH AMENDMENTS
                 TO THE UNITED STATES CONSTITUTION



PRAYER FOR RELIEF.............................................................................................12

CERTIFICATE OF WORD-COUNT COMPLIANCE.............................................12

CERTIFICATE OF SERVICE..................................................................................13




                                                       ii
                         INDEX OF AUTHORITIES

CASES:

    Arabie v. State, 421 S.W.3d 111 (Tex. App. - Waco 2013)............................7

    Arnold v. State, 742 S.W. 2d 10 (Tex. Crim. App.1987)................................7

    Cochran v. State, 78 S.W.3d 20 (Tex. App. - Tyler 2002)...........................10

    Cordova v. State, 733 S.W.2d 175 (Tex. Crim. App. 1987) .........................7

    Ex parte Martinez, 330 S.W.3d 891 (Tex. Crim. App. 2011).......................10

    Goodspeed v. State, 187 S.W.3d 390 (Tex. Crim. App. 2005).......................9

    Johnson v. State, 452 S.W.3d 398 (Tex. App. - Amarillo 2014)....................8

    Lopez v. State, 343 S.W.3d 137 (Tex. Crim. App. 2011).............................10

    Mendenhall v. State, 77 S.W.3d 815 (Tex. Crim. App. 2002)........................7

    Menefield v. State, 363 S.W.3d 591 (Tex. Crim. App. 2012).........................9

    Nava v. State, 415 S.W.3d 289 (Tex. Crim. App. 2013).................................8

    Perez v. State, 310 S.W.3d 890 (Tex. Crim. App. 2010)................................9

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

STATUTES:

           TEXAS PENAL CODE:

                   TEX. PENAL CODE ANN. §8.04 (a)............................................7

                   TEX. PENAL CODE ANN. §8.04 (b)............................................7

                                            iii
            TEX. PENAL CODE ANN. §22.02 (a) (1) & (b) (1)....................2



TEXAS CODE OF CRIMINAL PROCEDURE:

    TEX. CODE CRIM. PROC. ANN. art. 1.13 (a)........................................2

CONSTITUTIONAL PROVISIONS:

            U.S. Const., Amend. VI...........................................................11

            U.S. Const., Amend. XIV........................................................11

TEXAS RULES OF APPELLATE PROCEDURE:

    TEX. R. APP. PROC. 9.4 (i) (1).............................................................12

    TEX. R. APP. PROC. 9.4 (i) (3).............................................................12




                                        iv
                          CAUSE NO. 05-15-00347-CR

                                  IN THE
                             COURT OF APPEALS
                          FIFTH DISTRICT OF TEXAS
                                 AT DALLAS

                ***************************************

                              OJAY JOHNSON,
                                 Appellant

                                      v.

                           THE STATE OF TEXAS

                ***************************************

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      COMES NOW Ojay Johnson, Appellant herein, and respectfully submits this

his brief of appeal from his conviction for the offense of Aggravated Assault.

Judgment was rendered in the 195th District Court, Dallas, County, Texas, Judge

Fred Tinsley presiding.




                                       1
                        STATEMENT OF THE CASE

      Appellant was charged by indictment with the first degree felony offense of

Aggravated Assault in that he caused serious bodily injury to a member of his family

and household by using a deadly weapon. [CR: 8]. See TEX. PENAL CODE ANN.

§22.02 (a) (1) & (b) (1). Appellant waived his right to a trial by jury with the consent

and approval of the district court and the State. See TEX. CODE CRIM. PROC. ANN.

art. 1.13 (a). [CR: 138-141]. Appellant pled guilty without the benefit of a plea

bargain. [RR2: 5]. Based upon the plea and the evidence presented, the district court

found appellant guilty and assessed his sentence at confinement in the Institutional

Division of the Texas Department of Criminal Justice for twelve [12] years. [RR2:

139-140]. Notice of appeal was timely given. [CR: 148].




                              ISSUE PRESENTED

                                    ISSUE NO. I

             APPELLANT HAS BEEN DENIED THE EFFECTIVE
             ASSISTANCE OF COUNSEL IN VIOLATION OF
             THE FOURTEENTH AND SIXTH AMENDMENTS
             TO THE UNITED STATES CONSTITUTION



                                           2
                      STATEMENT OF FACTS

     Appellant does not contest the sufficiency of evidence. His judicial

confession admitting each and every element of the offense charged was

admitted into evidence. [RR2: 6]. He was identified as the perpetrator by

his grandmother, the victim. [RR2: 7-8]. Appellant testified and admitted

committing the offense under the influence of PCP. [RR2: 118 - 128].




                                    3
                  SUMMARY OF THE ARGUMENT

     Appellant appeared to be suffering from a drug induced psychosis

while committing the offense. His drug of choice was PCP.

     Prior to trial appellant was examined by a psychiatrist and, based

upon her examination, appellant was diagnosed as suffering from a mental

illness: Psychotic Disorder secondary to PCP usage. Trial counsel did not

present this witness in mitigation of penalty. The failure to do so rendered

counsel’s assistance ineffective in violation of the United States

Constitution. Although appellant was eligible for deferred adjudication

punishment, the trial court, without the benefit of the mitigating testimony,

declined to consider this form of punishment and instead set appellant’s

punishment at confinement in the penitentiary for twelve (12) years, seven

(7) years above the minimum incarceration sentence for conviction of a first

degree felony offense.




                                      4
                    ARGUMENT AND AUTHORITIES

                             APPELLANT’S ISSUE NO. I

             APPELLANT HAS BEEN DENIED THE EFFECTIVE
             ASSISTANCE OF COUNSEL IN VIOLATION OF
             THE FOURTEENTH AND SIXTH AMENDMENTS
             TO THE UNITED STATES CONSTITUTION

      Appellant’s recollection of the events surrounding the offense was limited

because, in his words, on that day he “was spaced out.” [RR2: 117]. On the day of

the offense he smoked PCP and marijuana. [RR2: 118]. He had abused PCP since he

was eighteen without his family’s knowledge. [RR2: 118]. He continued to use drugs

even while serving a prior probation. [RR2: 121]. While under the influence of the

drug he would lose control. [RR2: 122]. Appellant had been awake for two days

before committing the offense and was suffering from hallucinations. [RR2: 128].

      Approximately nine months prior to trial the district court became concerned

that appellant might suffer from a mental illness. Dr. Lisa Clayton was appointed to

examine appellant for possible mental incompetency. [CR: 19]. The evaluation

occurred a few days later.

      Dr. Lisa Clayton is a self described practitioner of Forensic and General

Psychiatry. Her full report is contained in the Clerk’s Record at pages 21 through 23.

She concluded, based upon her evaluation, that appellant was mentally competent


                                          5
to stand trial. He had a general understanding of the charge pending, the range of

punishment for the charge, and the responsibilities of the trial participants, i.e.

defense attorney, prosecutor, and judge. He had an adequate understanding of the plea

bargaining process.

      These were not her only conclusions. It was her medical opinion that appellant

was suffering from a mental illness which she described as “Psychotic Disorder

secondary to PCP usage.” [CR: 20]. It was also her opinion that appellant had a

“severe” chemical dependence issue with addiction to Xanax, PCP and marijuana.

[CR: 20]. Most importantly, it was her “...medical opinion (that) Mr. Ojay Johnson’s

criminal charge is directly related to his substance abuse issues.” [CR: 20].

      Dr. Clayton also stated that it was her medical opinion that appellant would

“...greatly benefit from a court mandated drug treatment program.” [CR: 20]. This was

in accord with appellant’s punishment strategy and request that the court consider

placing him under community supervision with in-house drug treatment. [RR2: 124].

      Dr. Clayton’s conclusions and report are contained within the Clerk’s Record

and the court did take judicial notice of the contents of appellant’s file. [RR2: 135].

However, the court’s attention was not directed specifically to the report or her

conclusions. Dr. Clayton was not called by the defense as a witness in mitigation of

penalty. She therefore did not explain in detail the nature of appellant’s psychosis or

                                          6
the role that it had played in the commission of the offense. She also was not present

as a witness to expand on what drug treatment program she would recommend or

how appellant would benefit “greatly” from it.

      Voluntary intoxication which causes “temporary insanity” does not constitute

a defense to a criminal act such that it would absolve the perpetrator from penal

liability. TEX. PENAL CODE ANN. §8.04 (a). However, depending upon the severity

of the intoxication, it may be admissible during punishment in mitigation of penalty.

TEX. PENAL CODE ANN. §8.04 (b). Evidence of “temporary insanity” caused by

voluntary intoxication can be used by the sentencing authority to lessen the

punishment assessed for the convicted person. Arabie v. State, 421 S.W.3d 111, 113

(Tex. App. - Waco 2013).

      In order to seek mitigation of punishment because of voluntary intoxication,

the defendant must establish that he was intoxicated and that the intoxication

rendered him “temporarily insane.” Arnold v. State, 742 S.W. 2d 10, 14, (Tex. Crim.

App. 1987). The defendant must establish that his voluntary intoxication caused him

to not know his conduct was wrong. Mendenhall v. State, 77 S.W.3d 815, 817-818

(Tex. Crim. App. 2002). The defendant must show that either intoxication made him

unaware that what he was doing was wrong, or it made him incapable of conforming

his conduct to the law. Cordova v. State, 733 S.W. 2d 175, 190 (Tex. Crim. App.

                                          7
1987); Johnson v. State, 452 S.W.3d 398, 407 (Tex. App. - Amarillo 2014).

      In the pending cause appellant claimed, and it was not disputed, that he was

under the influence of PCP when he committed the offense. He was, in his words,

“spaced out.” Combine this testimony with Dr. Clayton’s assessment in her report

that the criminal offense committed by appellant was directly related to his use of

PCP, appellant was on the path to establishing “temporary insanity” from voluntary

intoxication entitling him to seek mitigation of penalty and comprehensive drug

treatment under community supervision rather than incarceration. However, without

Dr. Clayton’s testimony on this issue, appellant’s mitigation argument based upon

“temporary insanity” was unsupported by any expert testimony.

      To prove that he received ineffective assistance of counsel, the appellant must

demonstrate by a preponderance of the evidence both deficient performance by

counsel and prejudice suffered by him at at trial. Strickland v. Washington, 466 U.S.

668, 687 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013).

Appellant must first establish that counsel’s performance fell below an objective

standard of reasonableness under prevailing professional norms. Strickland, 466 U.S.

at 687–88; Nava, 415 S.W.3d at 307. Second, appellant must then establish the

existence of a reasonable probability - one sufficient to undermine confidence in the

outcome - that the result of the proceeding would have been different absent

                                         8
counsel’s deficient performance. Strickland, 466 U.S. at 694; Nava, 415 S.W.3d at

308. The failure to make the required showing of either of the two prongs of this

appellate review test, deficient performance or sufficient prejudice, will result in the

Court ruling against him on his claim of          ineffective assistance of counsel.

Strickland, 466 U.S. at 700; see Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App.

2010).

      In conducting the review in this case of appellant’s claim of ineffective

assistance counsel, this Court will “indulge in a strong presumption that counsel’s

conduct was not deficient.” Nava, 415 S.W.3d at 307–08; see Strickland, 466 U.S. at

686. For the appellant to successfully rebut this presumption, the claim of ineffective

assistance must be “firmly founded in the record,” and “the record must affirmatively

demonstrate” the meritorious nature of the claim. Menefield v. State, 363 S.W.3d

591, 592 (Tex. Crim. App. 2012); Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.

Crim. App. 2005). An appellate court should reverse a conviction for the ineffective

assistance of counsel when the challenged conduct of trial counsel             was “so

outrageous that no competent attorney would have engaged in it.” Menefield, 363

S.W.3d at 593).

      Of course after establishing the unreasonableness of counsel’s error(s), the

appellant has the further burden of showing that the error(s) actually had an adverse

                                           9
effect on the defense or the punishment assessed. Strickland, 466 U.S. at 693–95;

Cochran v. State, 78 S.W.3d 20, 24 (Tex. App. - Tyler 2002). Merely showing that

the actions or omissions of counsel during trial were of questionable competence and

that the error(s) of counsel had only some conceivable effect on the proceedings will

not warrant reversal. Lopez v. State, 343 S.W.3d 137, 142–43 (Tex. Crim. App.

2011); Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011). The

appellant must prove that counsel’s errors, judged by the totality of the representation,

denied him a fair trial. Strickland, 466 U.S. at 695.

      In the instant cause the underlying facts of the offense were brutal. Appellant

attacked his aging and infirm grandmother in her own home in an attempt to steal

from her. [RR2 7-8]. He bit her on the fingers and attempted to suffocate her with a

pillow. [RR2 - 8]. The victim thought that appellant should receive a penitentiary

sentence of between ten (10) and twenty (20) years. [RR2 - 23]. Two other witnesses

testified to the devastation suffered by the victim because of the attack. [RR2 - 38-40;

50]. Both of these witnesses thought that appellant deserved significant time in the

penitentiary for the damage he caused to his grandmother.

      To rebut this devastating evidence appellant relied on the testimony of relatives

who were generally supportive of him and his own testimony. [RR2 - 52; 95; 102].

The testimony of Dr. Clayton would have been paramount in explanation of his

                                           10
behavior on the day of the offense. It was her expert opinion that appellant suffered

from a recognized psychiatric disorder related to his extensive use of PCP and that

the offense was directly related to this disorder. Her unbiased and expert testimony

would have established that appellant was “temporarily insane” from his voluntary

intoxication which under the law is a mitigating circumstance. As important,

considering appellant’s request that he be placed under community supervision with

drug treatment, Dr. Clayton believed, in her expert opinion, that appellant would

benefit greatly from a drug treatment program.

      It is true that when the district court took judicial notice of appellant’s file he

could rely of Dr. Clayton’s report in determining the appropriate sentence:

community supervision or penitentiary time. However, the court’s file in this case is

quite lengthy. At a minimum, trial counsel should have at least directed the court’s

attention to the doctor’s report. But more importantly, Dr. Clayton should have been

called as a witness to explain and amplify on her opinions. The failure to present Dr.

Clayton as a mitigation witness was ineffective representation by defense counsel to

the detriment of appellant in the eventual assessment of sentence. Appellant has

therefore been denied his Sixth and Fourteenth Amendment constitutional right to the

effective assistance of counsel. The pending cause should be reversed and remanded

for a new trial.

                                          11
                            PRAYER FOR RELIEF

         WHEREFORE, FOR THE FOREGOING REASONS, Appellant prays that

this Honorable Court reverse and remand this conviction to the trial court for a new

trial.

                                       Respectfully submitted,



                                       /S/ Lawrence B. Mitchell
                                       LAWRENCE B. MITCHELL
                                       SBN 14217500
                                       P.O. Box 797632
                                       Dallas, Texas 75379
                                       Tel. No.: 214.870.3440
                                       E-mail: judge.mitchell@gmail.com

                                       ATTORNEY FOR APPELLANT

               CERTIFICATE OF WORD-COUNT COMPLIANCE

         The undersigned attorney hereby certifies, in compliance with TEX. R. APP.

PROC. 9.4 (i) (3) that this document contains 1959 words, including all contents

except for the sections of the brief permitted to be excluded by TEX. R. APP. PROC.

9.4 (i) (1).

                                              /s/ Lawrence B. Mitchell
                                              LAWRENCE B. MITCHELL



                                         12
                         CERTIFICATE OF SERVICE

      The undersigned attorney hereby certifies that a true and correct copoy of the

foregoing brief is being served on the attorney for the State of Texas, Lori Ordiway

by e-mail at lori.ordiway@dallascounty.org on this the 17th day of September, 2015.


                                             /s/ Lawrence B. Mitchell
                                             LAWRENCE B. MITCHELL




                                        13
