Robert Deon Johnson, Jr v. State , 409 S.W.3d 738 ( 2013 )

Opinion issued July 16, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00248-CR
NO. 01-12-00249-CR
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ROBERT DEON JOHNSON, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Case Nos. 1299165 & 1299166
OPINION
Appellant, Robert Deon Johnson, Jr., pleaded guilty to the second-degree
felony offense of aggravated assault of a family member and to the third-degree
felony offense of injury to a child. 1 The trial court placed appellant on deferred-
adjudication community supervision for eight years for both offenses. The State
subsequently moved to adjudicate guilt, and appellant stipulated to the truth of the
allegations in the motion to adjudicate guilt. The trial court adjudicated guilt and
assessed punishment at ten years’ confinement for both offenses, to run
concurrently. In two issues, appellant contends that (1) the trial court denied him
due process on appeal when it failed to require the court reporter to make a record
of his sentencing hearing, and (2) the judgment in cause number 1299165 should
be reformed to reflect that he was convicted of “aggravated assault,” not
“aggravated assault of a family member.”
We affirm the judgment in trial court cause number 1299166. We modify
the judgment in trial court cause number 1299165 and affirm as modified.
Background
In the indictment for trial court cause number 1299165, the State alleged that
appellant “unlawfully, intentionally and knowingly threaten[ed] DAISHA
GUILLIAME, a PERSON WITH WHOM THE DEFENDANT HAD A DATING
RELATIONSHIP, hereafter styled the Complainant, with imminent bodily injury
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See TEX. PENAL CODE ANN. § 22.02(a)(2) (Vernon 2011) (aggravated assault); id.
§ 22.04(a)(3) (Vernon Supp. 2012) (injury to child). The offense of aggravated
assault of a family member was tried in trial court cause number 1299165 and
resulted in appellate cause number 01-12-00248-CR. The offense of injury to a
child was tried in trial court cause number 1299166 and resulted in appellate cause
number 01-12-00249-CR.
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by using and exhibiting a deadly weapon, namely, A KNIFE,” in violation of Penal
Code section 22.02. The indictment in cause number 1299166 alleged that
appellant caused bodily injury to J.C., a child younger than fifteen, by throwing her
into a wall, in violation of Penal Code section 22.04(a)(3). The record presented
by appellant includes only the clerk’s record.
On May 16, 2011, appellant pleaded guilty to the charged offenses, and the
State recommended that the trial court defer adjudication of guilt and place
appellant on community supervision for eight years for both of the offenses. In the
plea paperwork, appellant initialed an admonishment that stated, “I waive the right
to have a court reporter record my plea of Guilty or Nolo Contendere (No Contest)
or True. . . . I waive and give up under Article 1.14 of the Texas Code of Criminal
Procedure any and all rights given to me by law whether of form, substance, or
procedure.” The trial court accepted appellant’s plea, deferred adjudication of
guilt, and placed appellant on community supervision for eight years for both
offenses. In cause number 1299165, the deferred adjudication order stated the
offense as “Agg Assault-Family Member” and included an affirmative finding that
appellant was prosecuted for an offense that involved family violence.
The terms and conditions of appellant’s community supervision required
him to refrain from committing an offense against the laws of Texas and to
participate in a domestic violence treatment program. On January 30, 2012, the
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State moved to adjudicate guilt, alleging that appellant had committed two new
offenses and had failed to participate in a domestic violence treatment program.
Appellant stipulated that the allegations in the State’s motion to adjudicate were
true.
The trial court held a hearing on the State’s motion to adjudicate on
February 28, 2012. No reporter’s record exists of this hearing. There is no
indication in the record that appellant ever objected to or filed a motion
complaining of the court reporter’s failure to make a record of this hearing. The
trial court adjudicated guilt and assessed punishment at ten years’ confinement for
each offense, to run concurrently. The judgment for cause number 1299165
included an affirmative family violence finding, and it also stated, “Offense for
which Defendant Convicted: Agg Assault-Family Member.”
Appellant subsequently filed a motion “for reconsideration or reduction of
sentence,” in which he requested that the trial court reconsider its sentencing
decision and place him on community supervision. Appellant did not raise an
objection in this motion to the trial court’s failure to require the court reporter to
record the sentencing hearing. The trial court denied this motion, and this appeal
followed.
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Failure to Record Sentencing Hearing
In his first issue, appellant contends that the trial court denied him due
process on appeal when it failed to require the court reporter to record his
sentencing hearing.
Texas Rule of Appellate Procedure 13.1(a) requires the official court
reporter, “unless excused by agreement of the parties, [to] attend court sessions and
make a full record of the proceedings.” TEX. R. APP. P. 13.1(a). In Davis v. State,
the Court of Criminal Appeals clarified, however, that,
even if Rule 13.1 does impose a preliminary burden on the trial court
to ensure the presence of a court reporter at all proceedings, our case
law also imposes an additional, independent burden to object when
the official court reporter is not present, as he is required to be under
Rule 13.1, in order to preserve any error that may occur for appeal.
345 S.W.3d 71, 77 (Tex. Crim. App. 2011) (emphasis in original); see also
Satterfield v. State, 367 S.W.3d 868, 870 (Tex. App.—Houston [14th Dist.] 2012,
pet. ref’d) (holding that right to court reporter is right that may be forfeited by
defendant). Thus, to avoid forfeiture of the right to a record of, for example, a
sentencing hearing, the defendant must either request a court reporter or object to
the reporter’s failure to record the proceedings. See Satterfield, 367 S.W.3d at 871;
Ham v. State, 355 S.W.3d 819, 822–23 (Tex. App.—Amarillo 2011, pet. ref’d)
(holding that, when court reporter failed to record portion of trial, “it was for
[defendant] to raise a complaint with the trial court”); see also Newman v. State,
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331 S.W.3d 447, 450 (Tex. Crim. App. 2011) (“The record appellant presented,
however, contains no reporter’s record of any hearing that may have occurred on
June 26, 2008. This record also does not show whether appellant objected in the
event that the court reporter was not present to transcribe the June 26, 2008
hearing.”); Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (“The
record does not reflect that appellant made an objection to the court reporter’s
failure to record the bench conferences nor does appellant allege he made such an
objection at trial. Therefore, appellant has failed to preserve his complaint for
appeal.”).
There is no indication in the record that appellant objected to the court
reporter’s failure to record his sentencing hearing, either before the trial court at
the hearing or in a post-judgment motion. Although appellant filed a post-
judgment motion asking the trial court to reconsider his sentence, he mentioned
nothing about the court reporter’s failure to record his sentencing hearing.
Because the record does not indicate either that appellant requested that a
court reporter record his sentencing hearing or that appellant objected to the court
reporter’s failure to record the hearing, we follow the Court of Criminal Appeals’
holding in Davis: appellant has failed to preserve for appellate review his
complaint that the trial court denied him due process by failing to require the court
reporter to record the hearing. See Davis, 345 S.W.3d at 77; Satterfield, 367
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S.W.3d at 871; see also Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App.
2009) (“[O]ur prior decisions make clear that numerous constitutional rights,
including those that implicate a defendant’s due process rights, may be forfeited
for purposes of appellate review unless properly preserved.”).
We overrule appellant’s first issue.
Modification of Judgment
In trial court cause number 1299165, appellant was indicted under Penal
Code section 22.02(a)(2) for aggravated assault on “Daisha Guilliame, a person
with whom [he] had a dating relationship.”
In his second issue, appellant contends that the judgment for trial court cause
number 1299165 must be reformed because there is no offense entitled
“Aggravated Assault of a Family Member,” for which the judgment in that cause
number states that appellant was convicted.
Rule of Appellate Procedure 43.2(b) allows an appellate court to “modify
the trial court’s judgment and affirm it as modified.” TEX. R. APP. P. 43.2(b). An
appellate court has the power to reform an incorrect trial court judgment to “make
the record speak the truth when the matter has been called to its attention by any
source.” French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (citing
Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.—Dallas 1991, pet. ref’d)).
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Code of Criminal Procedure article 42.013 provides that if the trial court
“determines that the offense involved family violence, as defined by Section
71.004, Family Code, the court shall make an affirmative finding of that fact and
enter the affirmative finding in the judgment of the case.” TEX. CODE CRIM. PROC.
ANN. art. 42.013 (Vernon 2006); Butler v. State, 189 S.W.3d 299, 302 (Tex. Crim.
App. 2006) (“[T]he trial court is statutorily obligated to enter an affirmative
finding of family violence in its judgment, if during the guilt phase of trial, the
court determines that the offense involved family violence as defined by Tex. Fam.
Code § 71.004(1).”). Family Code section 71.004 (“Family Violence”) defines
“family violence” as including “an act by a member of a family or household
against another member of the family or household that is . . . a threat that
reasonably places the member in fear of imminent physical harm, bodily injury,
assault, or sexual assault . . . .” TEX. FAM. CODE ANN. § 71.004(1) (Vernon 2008).
“Family violence” includes “dating violence, as that term is defined by Section
71.0021.” Id. § 71.004(3). Section 71.0021 (“Dating Violence”) defines “dating
violence” as an act committed against a victim “with whom the actor has or had a
dating relationship” and that “is a threat that reasonably places the victim in fear of
imminent physical harm, bodily injury, assault, or sexual assault.” Id. § 71.0021(a)
(Vernon Supp. 2012). Section 71.003 (“Family”) defines “family” as including
individuals related by consanguinity or affinity, former spouses, parents of the
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same child without regard to whether they are married, and foster children and
foster parents. Id. § 71.003 (Vernon 2008). “Family” does not necessarily include
an individual with whom the actor is in a dating relationship.
Because appellant failed to seek a reporter’s record of his sentencing
hearing, there is no testimony before this Court as to the full nature of the
relationship between the complainant and appellant. It is the appellant’s burden to
bring forth a record to show error requiring modification of the trial court’s
judgment. See Diaz-Galvan v. State, 942 S.W.2d 185, 186 (Tex. App.—Houston
[1st Dist.] 1997, pet. ref’d); Applewhite v. State, 872 S.W.2d 32, 33 (Tex. App.—
Houston [1st Dist.] 1994, no pet.) (“The burden is on appellant, or other party
seeking review, to see that a sufficient record is presented to show error requiring
reversal.”). Because it was appellant’s burden to ensure a complete record on
appeal, we presume that omissions support the judgment of the trial court. Diaz-
Galvan, 942 S.W.2d at 186. Moreover, appellant stipulated that he committed
aggravated assault against an individual with whom he was in a dating relationship.
Thus, even if Guilliame was not a “family member,” appellant was undisputedly
convicted of an offense involving family violence, thereby requiring the trial court
to enter an affirmative finding of family violence in its judgment, which it did. See
TEX. CODE CRIM. PROC. ANN. art. 42.013; TEX. FAM. CODE ANN. § 71.004(3)
(defining “family violence” as including “dating violence”). Appellant cites no
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authority for the proposition that it is erroneous for the trial court to specify in its
judgment that the aggravated assault offense for which appellant was convicted
involves family violence in addition to making a separate affirmative family
violence finding in the judgment. See State v. Eakins, 71 S.W.3d 443, 444 (Tex.
App.—Austin 2002, no pet.) (stating that purpose of article 42.013 is to “simplify
the prosecution of subsequent family assault cases by making it unnecessary to
relitigate the details of the previous assault”). Appellant cites no authority for the
proposition that the only proper way to describe the offense for which he was
convicted was “aggravated assault,” instead of specifying that the offense involved
family violence.
The judgment accurately reflects that appellant was convicted of aggravated
assault on a person with whom he had a dating relationship, which constitutes an
offense involving an act of family violence under Family Code section 71.004(3).
However, because the record presented on appeal does not specify that Guilliame
was a member of appellant’s “family” as defined in Family Code section 71.003, in
the interest of clarity, we modify the “Offense for which Defendant Convicted”
portion of the trial court’s judgment to state “Agg Assault-Family Violence”
instead of “Agg Assault-Family Member.”
We sustain appellant’s second issue in part.
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Conclusion
We affirm the judgment in trial court cause number 1299166, appellate
cause number 01-12-00249-CR. We modify the “Offense for which Defendant
Convicted” portion of the judgment in trial court cause number 1299165, appellate
cause number 01-12-00248-CR, to state “Agg Assault-Family Violence,” not “Agg
Assault-Family Member.” We affirm as modified.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Higley, and Bland.
Publish. TEX. R. APP. P. 47.2(b).
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