Tabb Edward Johnson Jr. v. State ( 2020 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-18-00336-CR
__________________
TABB EDWARD JOHNSON JR., Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. 17-27605
__________________________________________________________________
MEMORANDUM OPINION
Tabb Edward Johnson Jr. was convicted of causing an accident involving
injury or death, a second-degree felony. See Tex. Transp. Code Ann. §
550.021(c)(1)(A). In two issues on appeal, Johnson argues that the evidence is
legally and factually insufficient to support his conviction and that the trial court
committed reversible error by commenting on the weight of the evidence. For the
reasons explained below, we affirm.
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I. Background
On March 27, 2017, the body of J.P. was found on the side of the road on
College Street in Beaumont, Texas. 1 Witness Michael Peel stated that he was driving
to work about 9 a.m. that morning when he noticed a political sign about a candidate
that shared his last name. Peel stated that next to the sign, he noticed someone lying
in the ditch, and he could see the person’s leg and abdomen. Once Peel turned
around, he discovered a body next to the sign. Peel then called 911 for help.
Police Officer Aaron Lewallen was the first officer to respond to the scene.
Lewallen testified that the body was lying on the side of the road in a grassy ditch
near a trailer park. Lewallen stated that injuries to the body were visible and the
person’s clothes had been partially removed. According to Lewallen, the victim’s
clothes were pulled up around his chest and, by the way the body was positioned in
the ditch, it appeared that the body was dragged and dropped at that location. He
stated that he had “seen people knocked out of their shoes[,] [b]ut rarely have I seen
anybody knocked out of their clothing.” Lewallen secured the scene and called the
traffic unit and the auto theft taskforce to help investigate. Lewallen explained that
1
To protect the privacy of the victim, we identify him by using his initials.
See Tex. Const. art. I, § 30(a)(1) (granting crime victims “the right to be treated with
fairness and with respect for the victim’s dignity and privacy throughout the criminal
justice process[.]”)
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debris and car parts were scattered around the scene and the auto theft taskforce
would assist in determining the make and model of the car that struck the victim. If
a car part happens to have a part number printed on it, that number can be used to
trace the make and model of the car. Lewallen stated that the debris field was wide,
and he did not observe any skid marks before or after the location of the body. Upon
cross examination, Lewallen admitted that skid marks would not necessarily be
present even if the driver stopped after they hit the victim.
Initially, the police did not have any leads to a suspect until Tara Johnson, the
defendant’s wife, came forward and stated she was the driver of the vehicle involved.
Lewallen testified that through his investigation he later identified Johnson, not Tara,
as the person driving the vehicle when it struck the victim. Johnson came to the
police station and with his attorney present, made a statement that he was the actual
driver of the vehicle, that he had been drinking and smoking marijuana that night,
and that Johnson believed he had hit a dog.
Tara testified that on the night of March 26, 2017, she and Johnson went to a
party at a friend’s house. While at the party, Tara had a glass of wine and smoked
marijuana. Johnson had two beers and also smoked marijuana. Tara stated that she
normally drives her vehicle because Johnson’s driver’s license was suspended.
When the couple left their friend’s house, Tara was driving, and they argued on their
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way back to their home. Tara testified that when they arrived home, she was not
feeling well, and she sent Johnson to the store to get her medicine. She assumed that
Johnson would go to the Walgreens on College Street because it was open 24 hours.
According to Tara, the round trip from their home to Walgreens would normally take
about 20 minutes. Tara stated that when Johnson was gone more than 45 minutes,
she became concerned and texted him. Eventually Johnson arrived home and
informed Tara that he thought he hit a dog. Tara testified that she “freaked out” and
went outside to observe the damage to her vehicle. She stated that it was dark outside,
and she could not observe much damage, but she agreed that pictures admitted at
trial that showed extensive damage to the front of the car and a smashed front
windshield accurately reflected the damage to her vehicle after the incident.
Tara testified that she and Johnson live with Johnson’s parents and they woke
her father-in-law to show him the damage to the vehicle. Her father-in-law then
drove to College Street to find the scene of the accident. Tara testified that it
appeared Johnson had hit something big with the car. Tara stated her father-in-law
told them he did not see anything when he drove to College Street. Tara stated that
Johnson did not go with his father back to College Street, and he did not call anyone
to report that he hit something.
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Tara testified that the next morning she and her husband had a conversation
about insurance, and they agreed to say Tara was driving the vehicle because
insurance would not cover the damage if Johnson was driving with a suspended
license. The next day, the local news reported that a body had been found on College
Street, and Tara’s father-in-law called the police and told them that Tara had been
driving the car. Tara then gave a statement to the police that she had been driving
the car that night. Johnson eventually came forward and admitted that he was driving
the vehicle that night.
Tabb Johnson Sr., the defendant’s Father, testified that in March 2017, his son
and daughter-in-law were living at his home. Tabb stated that after midnight,
Johnson and Tara woke him saying that they hit a big dog. Tabb testified that the
damage to the car concerned him, and he went to College Street to see if Johnson
had hit somebody. Tabb stated that he did not see a body that night or the next
morning when he went to work, but he admitted that he did not exit his vehicle to
look and see if there was a body.
Johnson testified that in March 2017, he had a suspended driver’s license. He
stated that on March 26, 2017, he and his wife went and had dinner at her friend’s
home. While at the house, Johnson consumed two beers and smoked marijuana, but
he did not believe he was intoxicated that night. Johnson stated that he and Tara left
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the friend’s house and returned to their home. Johnson stated that he had lost his cell
phone earlier in the day and was frantic looking for it when he and Tara returned
home.
Johnson stated that at about 11:00 p.m., he left the house to get Tara medicine
at Walgreens because she was not feeling well. According to Johnson, after he left
his home, he was halfway down College Street when he realized he left his wallet
and turned around to go back to the house to retrieve it. After making a U-turn on
College Street to return home, Johnson struck J.P. with his car. Johnson stated that
“there [was] not a vehicle on the roadway[,] [a]nd I’m driving home and next thing
I know[,] I felt and heard -- I seen (sic) a flash of light.” Johnson stated that he felt
the impact but did not see what he hit. Johnson testified that he “immediately slowed
down” but did not skid to a stop. Johnson stated that although he did not get out of
his vehicle, he “slowed down to a stop.” It was pitch black and Johnson did not see
anything. According to Johnson, the area where he hit J.P. “is the darkest part of
College Street.” Johnson stated that he did not get out of his vehicle and look because
he was afraid to walk around.
Johnson believed he had hit a dog. Even after he returned to his house and
assessed the damage, including a caved-in windshield, missing side mirror, and
broken front headlight, Johnson testified that he believed he had hit a “big dog.”
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Johnson stated that if he had known that he hit a person, he would have immediately
stopped to render first aid. Johnson stated that he did not see the victim before or
after the accident. According to Johnson, he and Tara mutually agreed to have Tara
take the blame for the accident.2
Dr. John Wayne testified that he is employed by the Forensic Medical
Management Services in Beaumont and that he performed the autopsy on the victim,
J.P. According to Dr. Wayne, J.P. suffered from, among other injuries, blunt force
trauma to his head and internal injuries resulting in internal decapitation consistent
with someone being struck by a vehicle.
The jury found Johnson guilty and, after a hearing on punishment, sentenced
Johnson to incarceration for twelve years in the Texas Department of Criminal
Justice. The trial court certified Johnson’s right of appeal, and Johnson timely filed
this appeal.
II. Analysis
A. Sufficiency of the Evidence
Johnson asserts that the evidence is insufficient to show that Johnson “failed
to stop and render reasonable assistance to [J.P.] when it was apparent that [J.P.] was
2
Several other witnesses testified at trial, but because Johnson does not contest
that he hit J.P., we will only discuss the testimony relevant to Johnson’s contested
issues on appeal. See Tex. R. App. P. 47.1.
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in need of medical treatment.” When an appellant raises a claim of insufficiency, we
review the evidence in the light most favorable to the verdict to determine whether
any rational factfinder could have found the essential elements of the offense beyond
a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.
2010) (citing Jackson v. Virginia, 443 U.S. 307 (1979)) (concluding the Jackson
standard “is the only standard that a reviewing court should apply” when examining
the sufficiency of the evidence); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007). We look to “all of the evidence in the record, both direct and circumstantial,
whether admissible or inadmissible.” Dewberry v. State, 4 S.W.3d 735, 740 (Tex.
Crim. App. 1999) (citations omitted). The jury is the sole judge of the witnesses’
credibility and weight to be given to their testimony. Tate v. State, 500 S.W.3d 410,
413 (Tex. Crim. App. 2016). Juries may draw multiple reasonable inferences from
facts so long as each inference is supported by the evidence presented at trial. Id.
Accordingly, we must defer to the jury’s determinations of weight and credibility of
the witnesses. See Brooks, 323 S.W.3d at 899; Hooper, 214 S.W.3d at 13. In
conducting a sufficiency review, an appellate court considers “‘events occurring
before, during[,] and after the commission of the offense and may rely on actions of
the defendant which show an understanding and common design to do the prohibited
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act.’” Hooper, 214 S.W.3d at 13 (quoting Cordova v. State, 698 S.W.2d 107, 111
(Tex. Crim. App. 1985)).
Per the indictment, the State was required to prove beyond a reasonable doubt
that Johnson, knowing an accident occurred, intentionally and knowingly left the
scene without providing information or rendering “reasonable assistance” to J.P.
when it was apparent J.P. was in need of assistance and J.P.’s death occurred as a
result. Johnson contends that the evidence is insufficient to show that he failed to
stop and render aid as required by the statute.
The Court of Criminal Appeals has held that the State satisfies this burden by
showing that “the accused had knowledge of the circumstances surrounding his
conduct, i.e., had knowledge that an accident had occurred.” Goss v. State, 582
S.W.2d 782, 785 (Tex. Crim. App. 1979) (internal citation omitted). The Houston
Court of Appeals explained the 2015 amendment to section 550.021 added the
requirement that the driver immediately determine whether a person is involved in
an accident, and that any further addition to the statute would be mere surplusage if
the State were required to prove the driver knew that the accident involved death or
injury to a person before the State could show that the driver shirked his duty to stop
and render aid. Mayer v. State, 494 S.W.3d 844, 849–50 (Tex. App.—Houston [14th
Dist.] 2016, pet. ref’d).
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Johnson does not contest that he was involved in an automobile accident on
College Street on March 26, 2017; he believed he hit a dog and not a person.
Johnson’s wife testified that Johnson told her immediately afterwards that he had
been in an accident and thought he hit a dog. She identified her vehicle as the vehicle
that Johnson was driving and confirmed the extensive damage to the vehicle,
including a smashed windshield. Johnson’s father testified that the damage to the
vehicle was so extensive that he immediately left his home and went to the scene of
the accident to look for a body. Therefore, overwhelming testimony established
Johnson’s awareness that he was in an accident that night.
While Johnson argues that the evidence is insufficient to show that he
“intentionally or knowingly” left the scene and failed to render aid, Johnson admitted
that the area in which he hit the victim was the darkest stretch of the highway and
that, at most, he slowed and stopped his vehicle but did not exit the vehicle to see if
there was a victim. Johnson testified he was afraid to exit his vehicle. He stated that
he did not observe anything and drove home. When at home, he was concerned
enough that he told his wife and awoke his father but Johnson told them he believed
he hit a big dog. Although only minutes after he arrived home after the accident,
Johnson failed to return to the scene with his father. In the bright hours of daylight,
Johnson again failed to go back to College Street and investigate. Additionally,
10
although Johnson testified that he did stop his vehicle after the accident, both his
wife and police investigators testified that Johnson only slowed his vehicle after the
collision.
Section 550.021 has the following language:
a) The operator of a vehicle involved in an accident that results or
is reasonably likely to result in injury to or death of a person shall:
(1) immediately stop the vehicle at the scene of the accident
or as close to the scene as possible;
(2) immediately return to the scene of the accident if the
vehicle is not stopped at the scene of the accident;
(3) immediately determine whether a person is involved in the
accident, and if a person is involved in the accident, whether that
person requires aid; and
(4) remain at the scene of the accident until the operator
complies with the requirements of Section 550.023. 3
3
Section 550.023 provides that
[t]he operator of a vehicle involved in an accident resulting in the injury
or death of a person or damage to a vehicle that is driven or attended by
a person shall:
(1) give the operator’s name and address, the registration number of
the vehicle the operator was driving, and the name of the operator’s
motor vehicle liability insurer to any person injured or the operator or
occupant of or person attending a vehicle involved in the collision;
(2) if requested and available, show the operator’s driver’s license to
a person described by Subsection (1); and
(3) provide any person injured in the accident reasonable assistance,
including transporting or making arrangements for transporting the
person to a physician or hospital for medical treatment if it is apparent
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Tex. Transp. Code Ann. § 550.021(a) (emphasis added). Notably, section
550.021(a)(3) requires that a person not only stop their vehicle, but the driver must
also “determine if a person is involved in the accident[.]” Id. This statutory language
is not superfluous, rather it imposes a mandatory obligation on a driver to stop and
investigate. See Mayer, 494 S.W.3d at 849–50. Therefore, Johnson was charged with
a duty to not only stop his vehicle but get out and investigate the accident scene to
determine if a person was involved. Johnson failed to do this not only once at the
scene of the accident, but twice when he refused to return to the scene with his father
and investigate mere minutes after arriving home. “In order to be subject to the duty
to stop, investigate, and then render aid, appellant need only have known that an
accident occurred.” Id. at 851. Finally, the fact that Johnson attempted to have his
wife take responsibility for his crime could be indicative of guilt. See Torres v. State,
794 S.W.2d 596, 598 (Tex. Crim. App. 1990) (noting that consciousness of guilt is
“one of the strongest kinds of evidence of guilt”); State v. Villegas, 506 S.W.3d 717,
749 (Tex. App.—El Paso 2016, pet. dism’d) (“Any conduct on the part of a person
accused of a crime subsequent to its commission that indicates a consciousness of
that treatment is necessary, or if the injured person requests the
transportation.
Tex. Transp. Code Ann. § 550.023.
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guilt may be received as a circumstance tending to prove that he committed the act
with which he is charged.”).
The State was not required to prove that Johnson knew that he had struck a
human being; rather, the State must prove Johnson had knowledge of the
circumstances surrounding his conduct, i.e., Johnson knew that an accident occurred.
See Goss, 582 S.W.2d at 785; Mayer, 494 S.W.3d at 849–50. The State had to prove
that Johnson operated a vehicle, was involved in an accident that resulted in the
victim’s death, and intentionally or knowingly failed to stop and render reasonable
assistance. See McCown v. State, 192 S.W.3d 158, 162 (Tex. App.—Fort Worth
2006, pet. ref’d). It was within the province of the jury to weigh the testimony and
to resolve any conflicts in the testimony. See Hooper, 214 S.W.3d at 13. The jury
could have concluded that Johnson’s alleged mistaken belief that he struck an animal
was not reasonable under the circumstances. See Tex. Penal Code Ann. § 8.02(a).
Viewing the evidence in the light most favorable to the verdict, we conclude
that a rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. See Hooper, 214 S.W.3d at 13. The evidence is legally
sufficient to support the verdict. Accordingly, we overrule Johnson’s second issue.
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B. Comment on the Weight of the Evidence
Additionally, Johnson argues that the trial court impermissibly commented on
the weight of the evidence in violation of article 38.05 of the Texas Code of Criminal
Procedure. See Tex. Code Crim Proc. Ann. art. 38.05.4
The record establishes that Johnson’s complained of error occurred outside
the jury’s presence and without objection from his trial counsel. Therefore, Johnson
has failed to preserve error for this Court’s review. See Tex. R. App. P.
33.1(a)(1)(A); see also Morgan v. State, 365 S.W.3d 706, 710 (Tex. App.—
Texarkana 2012, no pet.) (“No objection was made to this instruction. Generally, a
claim that the trial court erred by commenting on the weight of the evidence during
trial or while ruling on evidentiary matters must be preserved by objection before
the appellate court may consider it.”); Moore v. State, 275 S.W.3d 633, 637 (Tex.
App.—Beaumont 2009, no pet.) (“[I]n the absence of an objection, [the appellant’s]
4
Article 38.05 of the Texas Code of Criminal Procedure provides that:
In ruling upon the admissibility of evidence, the judge shall not discuss
or comment upon the weight of the same or its bearing in the case, but
shall simply decide whether or not it is admissible; nor shall he, at any
stage of the proceeding previous to the return of the verdict, make any
remark calculated to convey to the jury his opinion of the case.
14
complaint, asserting that the questions constitute a comment on the evidence, was
waived.”). We overrule Johnson’s final issue. 5
III. Indictment and Judgment
We note that neither party has brought to the attention of this Court that the
indictment and subsequent judgment of conviction contain an insufficient numerical
recitation of the correct statute. The Texas Code of Criminal Procedure sets out the
requirements for an indictment in article 21.02 and provides that the “offense must
be set forth in plain and intelligible words.” Tex. Code Crim. Proc. Ann. art.
21.02(7). An indictment is usually legally sufficient if it tracks the penal statute in
question. State v. Moff, 154 S.W.3d 599, 602 (Tex. Crim. App. 2004). An indictment
must allege that (1) a person, (2) committed an offense. Teal v. State, 230 S.W.3d
172, 179 (Tex. Crim. App. 2007) (citing Cook v. State, 902 S.W.2d 471 (Tex. Crim.
App. 1995)). To determine if a charging instrument alleges an offense, we must
decide if the allegations are clear enough that one can identify the offense alleged.
See id. at 180. A trial court and the defendant must be able to identify what penal
5
Several Courts of Appeals have held that comments made by the trial court
outside the presence of the jury do not affect the defendant’s right to fair trial. See
Baca v. State, 223 S.W.3d 478, 482 (Tex. App.—Amarillo 2006, no pet.); State v.
Strong, 138 S.W.3d 546, 553 (Tex. App.—Corpus Christi 2004, no pet.); Murchison
v. State, 93 S.W.3d 239, 261–62 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d);
Lorenzo v. State, No. 03-08-00544, 2010 WL 2788757, at *1 (Tex. App.—Austin
July 14, 2010, no pet.) (mem. op.).
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code provision is alleged and whether that provision vests jurisdiction in the trial
court. See id. An indictment that tracks the statutory language generally satisfies
constitutional and statutory requirements. State v. Mays, 967 S.W.2d 404, 406 (Tex.
Crim. App. 1998).
The indictment in question properly identifies Johnson and his crime and
properly tracks the language outlined in the statute, resulting in Johnson being on
sufficient notice of his charges. See id. Accordingly, we modify the judgment of the
trial court to properly reflect the correct numerical designation of the statute charged.
See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App.
1993) (stating this Court has the authority to reform the trial court’s judgment to
correct clerical errors). The trial court’s judgment is modified to reflect that Johnson
was convicted under section 550.021(c)(1)(A), Texas Penal Code.
IV. Conclusion
Having overruled all of Johnson’s issues on appeal, we affirm the judgment
of the trial court as modified to reflect that Johnson was convicted under section
550.021(c)(1)(A).
AFFIRMED AS MODIFIED.
_________________________
CHARLES KREGER
Justice
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Submitted on November 4, 2019
Opinion Delivered March 25, 2020
Do Not Publish
Before Kreger, Horton and Johnson, JJ
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