Michael Johnson v. State ( 2010 )

MEMORANDUM OPINION
No. 04-08-00919-CR
Michael JOHNSON,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2007-CR-2356
Honorable Juanita A. Vasquez-Gardner, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice
Delivered and Filed: August 18, 2010
AFFIRMED
Without the benefit of a plea bargain, appellant Michael Johnson entered a plea of guilty
to the offense of aggravated robbery, and agreed to an affirmative deadly weapon finding. The
trial court found Johnson guilty, made an affirmative deadly weapon finding, and sentenced
Johnson to confinement in the Texas Department of Criminal Justice-Institutional Division for
twenty-five years. Johnson’s appointed appellate counsel filed a brief in which she asserted she
could find no arguable grounds for appeal. See Anders v. California, 386 U.S. 738 (1967).
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Thereafter, Johnson filed a brief on his own behalf, and therein contends: (1) he was denied the
right to a speedy trial, (2) he was erroneously denied a “lesser included charge on robbery”
pursuant to the test established in Royster v. State, 622 S.W.2d 442 (Tex. Crim. App. 1981), and
(3) the evidence was legally and factually insufficient to find him guilty of the offense of
aggravated robbery with a deadly weapon. We affirm.
BACKGROUND
Johnson pled guilty, and stipulated to the evidence against him. We have derived the
background facts from the stipulated evidence, which consists of a police report and a
transcription of a statement Johnson gave to police after his arrest.
On December 14, 2006, John Knight was working in his garage on an antique pickup
truck. Knight heard someone walking along the side of his house, and when he looked up, he
saw a man standing in his garage. The man pointed a shotgun at Knight. A second man, who
had a windbreaker partially covering his face, walked into the garage. The man with the shotgun
told Knight to give him the keys to the truck and his money. When Knight advised the man that
he was “broke,” the gunman forced him to empty his pockets and prove his wallet was empty.
Assured the victim had no money, the gunman again demanded the truck keys, which Knight
tossed toward the gunman. The keys fell on top of a lawn mower, and were picked up by the
man with the windbreaker. The gunman told the man with the windbreaker “to go start the truck,
Cuz,” which he did. The truck taken by the robbers was not the antique pickup truck, but a 1998
Chevrolet pickup truck, which was parked in the driveway. As the robbers left, the gunman
advised Knight not to call police or tell anyone or Knight would be killed. The gunman stated
“his people” knew where Knight lived and would come back and kill Knight if he told.
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Despite the gunman’s warnings, Knight called the police. Deputies from the Bexar
County Sheriff’s Department arrived and took a report. Police subsequently recovered the 1998
Chevrolet pickup truck, but it had been driven into a tree. Ultimately, Knight identified Johnson
as the gunman from a photographic array prepared by law enforcement.
After he was identified by Knight, police interviewed Johnson and transcribed his
statement. Johnson admitted taking the pickup truck, and threatening to kill Knight if he refused
to turn over the keys or called police, but Johnson denied having a shotgun. Johnson was
indicted by a grand jury for the offense of aggravated robbery with a deadly weapon. He pled
guilty without a plea bargain agreement, and the trial court found him guilty and sentenced him
to confinement in the Texas Department of Criminal Justice–Institutional Division for twenty-
five years.
SPEEDY TRIAL
Johnson first contends he was denied the right to a speedy trial in contravention of the
Sixth Amendment of the United States Constitution and Article I, section 10 of the Texas
Constitution. Johnson argues that his incarceration for almost two years from the time of his
arrest to the day of sentencing violated his constitutional rights.
Under the Sixth Amendment to the United States Constitution, an accused is guaranteed
the right to a speedy trial. 1 Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008). This
right attaches once a person becomes an “accused,” i.e., when he is arrested or charged. Id.
Appellate courts analyze speedy trial claims “on an ad hoc basis,” weighing and then balancing
the four factors set forth in Barker v. Wingo: (1) the length of the delay, (2) the reason for the
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The right to a speedy trial is also guaranteed under Article I, section 10 of the Texas Constitution. TEX. CONST. art.
I, § 10. Although the right secured by the Texas Constitution is independent of the right guaranteed by the Sixth
Amendment, the Texas Court of Criminal Appeals has held the analysis for claims under the Texas Constitution is
the same as for claims under the United States Constitution. Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App.
1992).
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delay, (3) the assertion of the right, and (4) the prejudice to the accused. Id.; see Barker v.
Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Although the State has the
burden to justify the length of the delay, the defendant must prove assertion of the right and
demonstrate prejudice. Cantu, 253 S.W.3d at 281. The defendant’s burden “varies inversely”
with the State's degree of culpability for the delay. Id. (quoting Robinson v. Whitley, 2 F.3d 562,
570 (5th Cir.1993)). “Thus, the greater the State’s bad faith or official negligence and the longer
its actions delay a trial, the less a defendant must show actual prejudice or prove diligence in
asserting his right to a speedy trial.” Id. at 280-81.
The Barker analysis is triggered when the delay is sufficiently unreasonable so as to be
“presumptively prejudicial.” Id. at 281 (quoting Doggett v. United States, 505 U.S. 647, 652 n.
1, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992)). Although there is no set time, a delay of four
months is insufficient for presumptive prejudice, but a delay of seventeen months is sufficient.
Cantu, 253 S.W.3d at 281 (citing Pete v. State, 501 S.W.2d 683, 687 (Tex. Crim. App. 1973)
(holding four-month delay is not presumptively prejudicial); Phillips v. State, 650 S.W.2d 396,
399 (Tex. Crim. App. 1983) (holding seventeen-month delay is presumptively prejudicial)). If
the court finds a presumptively prejudicial delay, it must analyze the speedy trial claim by first
weighing the strength of each remaining factor, and then balancing their relative weights in light
of “the conduct of both the prosecution and the defendant.” Cantu, 253 S.W.3d at 281 (quoting
Barker, 407 U.S. at 530). The factors are related and must be considered together along with any
other relevant circumstances, and no one factor is either necessary or sufficient to find a speedy
trial violation. Cantu, 253 S.W.3d at 281. Courts must therefore “engage ‘in a difficult and
sensitive balancing process’ in each individual case.” Id. (quoting Barker, 407 U.S. at 533).
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Although Johnson contends he raised the speedy trial issue in the court below, the record
does not support his contention. There is nothing in the record to establish Johnson raised a
speedy trial allegation in the trial court. Accordingly, it could be argued he has waived his
speedy trial complaint. See Bridges v. State, No. 02-08-356-CR, (Tex. App.—Fort Worth Feb.
11, 2010, pet. ref’d) (mem. op.) (not designated for publication); see also Cantu, 253 S.W.3d at
281 (holding defendant bears burden to assert right to speedy trial); but see Barker, 407 U.S. at
531 (holding failure to assert right to speedy trial will make it difficult for defendant to prove he
was denied speedy trial); Narvaez v. State, 05-09-00039-CR, 2010 WL 924004, at *6 (Tex.
App.—Dallas Mar. 16, 2010, no pet.) (same). However, even if we assume the complaint was
not waived, an analysis of the Barker factors does not mandate reversal in this case.
The State concedes the delay in this case, which is measured from the date the defendant
is formally accused or arrested, is presumptively prejudicial so as to trigger the Barker analysis.
See Emery v. State, 881 S.W.2d 702, 708 (Tex. Crim. App. 1994) (citing United States v.
Marion, 404 U.S. 307, 313, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971)). We agree. According to the
stipulated evidence, Johnson was arrested and charged with aggravated robbery on December 15,
2006. He was thereafter indicted on March 13, 2007. He pled guilty on November 4, 2008, and
was sentenced on December 8, 2008. Thus, by the time of the plea and sentence, almost two
years had elapsed from the time Johnson was arrested, far longer than the seventeen-month delay
found presumptively prejudicial in Phillips. See 650 S.W.2d at 399. Because the delay was
beyond the minimum needed to trigger the Barker inquiry, this factor weighs heavily in favor of
finding a violation of Johnson’s right to a speedy trial. See Zamorano v. State, 84 S.W.3d 643,
649 (Tex. Crim. App. 2002).
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As to the second Barker factor, reason for the delay, the record contains no explanation
for the delay. This is not surprising given that Johnson did not assert his right to a speedy trial in
the court below–no hearing was necessary in the absence of a request. In the absence of
explanation for a delay, the court is not to presume either a deliberate attempt to prejudice the
defense or a valid reason for the delay. Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App.
2003); Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003). We hold the unexplained
delay, while typically weighing in favor of a speedy trial violation, though not heavily, does not
weigh in favor of a violation in this case. Because appellant did not assert his right to a speedy
trial, there was no call for the State to provide any explanation for the delay. It would be
unreasonable to hold a failure to provide an explanation for delay weighs against the State when
it was the defendant’s burden to assert the issue. Accordingly, we hold this issue weighs neither
for nor against Johnson’s right to a speedy trial.
We next consider Johnson’s assertion, or lack thereof, of his right to a speedy trial. The
record does not reflect that Johnson ever asserted his right to a speedy trial in the trial court;
rather, it was only when he filed his appellant’s brief in this court that he raised the issue.
Assuming this failure does not amount to a waiver, the lack of a timely demand indicates
strongly that Johnson did not really want a speedy trial and that he was not prejudiced by the lack
of one. See Dragoo, 96 S.W.3d at 314 (citing Barker, 407 U.S. at 532). Moreover, the longer
the delay, the more likely it is that a defendant desiring a speedy trial would have taken some
action to obtain it. Dragoo, 96 S.W.3d at 314 (citing Barker, 407 U.S. at 532). Inaction
therefore weighs more heavily against a violation the longer the delay becomes. Id. Given the
absence of any evidence that Johnson asserted his speedy trial right in the court below, we hold
this weighs heavily against finding a violation of his right to a speedy trial. See id.
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Finally, when analyzing the prejudice to the defendant, the court must do so in light of
the interests the right to a speedy trial was designed to protect: (1) freedom from oppressive
pretrial incarceration, (2) mitigation of the anxiety and concern accompanying public accusation,
and (3) avoidance of impairment to the accused’s defense. Cantu, 253 S.W.3d at 285. Of these
interests, the last is the most serious because a defendant's inability to prepare his defense affects
the fairness of the entire system. Id. A defendant is not required to show actual prejudice of the
protected interests; rather, he need only make some showing that he has been prejudiced by the
delay. Rangel, 980 S.W.2d at 844 (citing State v. Burckhardt, 952 S.W.2d 100, 104 (Tex.
App.—San Antonio 1997, no pet.)).
Although the record establishes Johnson was incarcerated for approximately two years–
his request for a bond reduction was denied–given his failure to assert his right to a speedy trial
below, Johnson obviously presented no evidence to the trial court with regard to the anxiety and
concern he may have suffered or to any prejudice his defense may have suffered as a result of the
delay. Given the absence of any evidence of prejudice, we hold this factor weighs against a
speedy trial violation.
Having addressed the four Barker factors, we must now balance them. See Cantu, 253
S.W.3d at 280. Weighing in favor of finding a violation of Johnson’s speedy trial right is the
length of the delay, but weighing against finding a violation is Johnson’s complete failure to
assert his rights in the court below, and his failure to produce any evidence of prejudice.
Accordingly, we hold the weight of the four factors, when balanced together, is against finding a
violation of Johnson’s right to a speedy trial, and we overrule his first point of error.
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JURY CHARGE ON LESSER INCLUDED OFFENSE
In his second point of error, Johnson contends “the trial court erred in not applying the
Roster [sic] test.” See Royster, 622 S.W.2d at 444. In a line of cases described commonly as the
Royster-Rousseau line of cases, the Texas Court of Criminal Appeals established a two-prong
test for determining when a trial court should submit a jury charge on a lesser included offense.
Grey v. State, 298 S.W.3d 644, 645 (Tex. Crim. App. 2009); see Rousseau v. State, 855 S.W.2d
666, 672 (Tex. Crim. App. 1993); Royster, 622 S.W.2d at 444. Before a trial court is required to
submit to the jury a lesser included offense charge requested by the defendant, the trial court
must find that the lesser included offense is within the proof necessary to establish the offense
charged, and there is some evidence in the record that if the defendant is guilty, he is guilty only
of the lesser offense. Rousseau, 855 S.W.2d at 672. Clearly, Royster and its progeny are
applicable only to jury trials, and Johnson has not cited this court to any authority to the contrary.
Moreover, the law is clear that when a defendant waives his right to a jury trial and enters a
guilty plea, as Johnson did in this case, the trial court is authorized to consider the evidence
adduced at the guilty plea and find the defendant guilty as charged in the indictment, guilty of a
lesser offense, or not guilty. See Aldrich v. State, 104 S.W.3d 890, 893 (Tex. Crim. App. 2003).
Johnson seems to contend, in the guise of a Royster-Rousseau complaint, that if he is
guilty, he is guilty only of robbery because he consistently asserted to law enforcement that he
did not have a shotgun and never pointed a shotgun at Knight. This complaint is in the nature of
a sufficiency of the evidence complaint, not a jury charge complaint based on the absence of a
lesser included offense charge. Accordingly, we hold this point of error presents nothing for our
review, and we will consider the sufficiency complaint as presented in Johnson’s third point of
error.
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LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE
Finally, Johnson contends, despite his plea and agreement to the affirmative deadly
weapon finding, the evidence is legally and factually insufficient to support his conviction for
aggravated robbery with a deadly weapon. Johnson specifically argues the evidence was
insufficient to establish he used or exhibited a shotgun during the course of the robbery because
(1) he denied possessing or using a shotgun, and (2) the only evidence in the record is Knight’s
statement to police that Johnson had a shotgun and pointed it at him.
Johnson references the traditional standards of review applicable to legal and factual
sufficiency challenges. See, e.g., Prible v. State, 175 S.W.3d 724, 729-30 (Tex. Crim. App.),
cert. denied, 546 U.S. 962 (2005) (holding that when reviewing evidence for legal sufficiency,
appellate court reviews all of evidence in light most favorable to verdict to determine whether
any rational trier of fact could have found essential elements of offense beyond reasonable
doubt); Watson v. State, 204 S.W.3d 404, 414-25 (Tex. Crim. App. 2006) (holding that when
reviewing evidence for factual sufficiency, appellate court reviews all of evidence in neutral light
and sets aside verdict only if evidence is so weak that verdict is clearly wrong and manifestly
unjust, or contrary evidence is so strong that standard of proof beyond reasonable doubt could
not have been met). “However, these traditional standards do not apply to non-capital felony
cases when the defendant enters a plea of guilty or nolo contendere.” Tijerina v. State, 264
S.W.3d 320, 322 (Tex. App.—San Antonio 2008, pet. ref’d). The entry of a valid guilty plea
“has the effect of admitting all material facts alleged in the indictment or other charging
instrument.” Id. Once a defendant enters a valid plea of guilty in a bench trial, the State is not
required to prove guilt beyond a reasonable doubt. Id. Rather, the State is only required to
support the guilty plea with evidence. TEX. CODE CRIM. PROC. art. 1.15 (Vernon 2005).
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To sustain a guilty plea under article 1.15, the State must offer evidence to support the
plea and the judgment to be entered. Tijerina, 264 S.W.3d at 323. The evidence must embrace
each essential element of the charged offense. Id. Therefore, our sufficiency review following a
plea of guilty is limited to determining whether the State introduced evidence embracing every
essential element of the offense charged. Id.
Johnson was charged with aggravated robbery with a deadly weapon. In support of his
guilt, the State introduced into evidence its Exhibit No. 1, which included the “Waiver, Consent
to Stipulation of Testimony and Stipulations” sworn to by Johnson. In that document, Johnson
swore he was the person named in the indictment, and that all of the allegations in the indictment
occurred in Bexar County, Texas and were true. He also swore that on or about December 14,
2006, he “intentionally and knowingly . . . while in the course of committing theft of property
and with intent to obtain and maintain control of said property, did intentionally and knowingly
threaten and place John Knight in fear of imminent bodily injury and death . . . and . . . did use
and exhibit a deadly weapon, to wit: A FIREARM.” This is the language contained in the
indictment. By swearing the allegations in the indictment were true, Johnson judicially
confessed that he used and exhibited a deadly weapon, specifically a firearm, during the course
of committing theft of property and placed Knight in fear of imminent bodily injury and death,
i.e., he judicially confessed to aggravated robbery. “It is well settled that a judicial confession
alone, is sufficient to sustain a conviction upon a guilty plea.” Id. (quoting Dinnery v. State, 592
S.W.2d 343, 353 (Tex. Crim. App. 1979)). “In other words, a judicial confession satisfied the
State’s burden under article 1.15.” Id.
Johnson’s argument that the evidence is not sufficient because State’s Exhibit No. 1 also
contains his statement, in which he denied having or using a firearm, is without merit. At most,
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State’s Exhibit No. 1 contains conflicting evidence, and as this court stated in Tijerina, it is well-
settled under Texas law that the judicial confession is alone sufficient to meet the requirements
of article 1.15 and sustain a conviction following a valid guilty plea. 264 S.W.3d at 324. We
therefore overrule Johnson’s third point of error.
CONCLUSION
Based on the foregoing, we overrule Johnson’s points of error, and affirm the trial court’s
judgment.
Marialyn Barnard, Justice
Do Not Publish
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