Brandon Toderick Johnson v. State

ACCEPTED

01-15-00444-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

10/12/2015 1:58:20 PM

CHRISTOPHER PRINE

No. 01-15-00444-CR, 01-15-00445-CR, 01-15-00446-CR CLERK

In the

Court of Appeals FILED IN

For the 1st COURT OF APPEALS

HOUSTON, TEXAS

First District of Texas

10/12/2015 1:58:20 PM

At Houston CHRISTOPHER A. PRINE

Clerk

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No. 1378279, 1458347, 1458348

In the 230th District Court

Of Harris County, Texas



BRANDON TODERICK JOHNSON

Appellant

V.

THE STATE OF TEXAS

Appellee



STATE’S APPELLATE BRIEF



DEVON ANDERSON

District Attorney

Harris County, Texas

KIMBERLY APERAUCH STELTER

Harris County Criminal Justice Center

1201 Franklin, Suite 600

Houston, Texas 77002

Telephone: 713.755.5826

stelter_kimberly@dao.hctx.net

State Bar Number: 19141400

LISA CALLIGAN

Assistant District Attorney

Harris County, Texas

ORAL ARGUMENT NOT REQUESTED

STATEMENT REGARDING ORAL ARGUMENT

State believes that the matters raised by the appellant are well-settled,

and that the briefs in this case adequately apprise this Court of the issues and

the law. Therefore, the State does not request oral argument.

IDENTIFICATION OF THE PARTIES

Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a

complete list of the names of all interested parties is provided below.

Counsel for the State:

Devon Anderson  District Attorney of Harris County

Kimberly Aperauch Stelter  Assistant District Attorney on

appeal

Lisa Calligan  Assistant District Attorney at trial

Appellant and counsel:

Brandon Toderick Johnson  Appellant

Thomas J. Lewis  Counsel on appeal

Jerome Godinich  Defense counsel at trial

Trial Judge:

Honorable Brad Hart  Judge Presiding

TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ................................................i

IDENTIFICATION OF THE PARTIES ....................................................................i

TABLE OF CONTENTS .......................................................................................... ii

INDEX OF AUTHORITIES ....................................................................................... iii

STATEMENT OF THE CASE .................................................................................. 1

STATEMENT OF FACTS ........................................................................................ 2

SUMMARY OF THE ARGUMENT ........................................................................ 5

REPLY TO APPELLANT’S FIRST AND SECOND ISSUES PRESENTED ........ 5

PRAYER .................................................................................................................. 15

CERTIFICATE OF SERVICE ................................................................................ 16

CERTIFICATE OF COMPLIANCE ....................................................................... 17

ii

INDEX OF AUTHORITIES

CASES

Aldrich v. State,

104 S.W.3d 890 (Tex. Crim. App. 2003)...................................................................... 14

Arreola v. State,

207 S.W.3d 387 (Tex. App.

–Houston [1st Dist.] 2006, no pet.) ....................................................................... 12, 15

Brewer v. State,

No. 1270–03, 2004 WL 3093224 (Tex. Crim. App., 2004) (opin. not

designated for publication) .............................................................................................. 16

Brown v. State,

11 S.W.3d 360 (Tex. App. –

Houston [1st Dist.]2000, pet. ref’d) .............................................................................. 14

Cammack v. State,

645 S.W.2d 866 (Tex. App.—

Dallas 1983, pet. ref'd) ....................................................................................................... 17

Dinnery v. State,

592 S.W.2d 343 (Tex. Crim. App. 1979) (op. on reh’g) ........................................ 15

Dusenberry v. State,

915 S.W.2d 947 (Tex. App.

—Houston [1st Dist.] 1996, pet. ref’d) ........................................................................ 13

Edwards v. State,

921 S.W.2d 477 (Tex. App.

—Houston [1st Dist.] 1996, no pet.) ............................................................................ 12

Jackson v. State,

2014 WL 6462391(Tex. App. –

Houston [14th Dist.] 2014, pet. ref’d )(opin. not designated for publication)

...................................................................................................................................................... 16

iii

Johnson v. State,

6 S.W.3d 709 (Tex. App.

–Houston [1st Dist.]1999, pet. ref’d)............................................................................ 17

Martinez v. State,

981 S.W.2d 195 (Tex. Crim. App. 1998) .................................................................... 12

Moon v. State,

572 S.W.2d 681 (Tex. Crim. App. 1978)...................................................................... 14

Rollerson v. State,

227 S.W.3d 718 (Tex. Crim. App. 2007)...................................................................... 17

Staggs v. State,

314 S.W.3d 155 (Tex. App.—

Houston [1st Dist.] 2010, no pet.) ................................................................................. 15

Stewart v. State,

12 S.W.3d 146 (Tex. App. –

Houston [1st Dist.] 2000, no pet.) ................................................................................. 15

Woods v. State,

398 S.W.3d 396 (Tex. App. –

Texarkana 2013, pet. ref’d) .............................................................................................. 16

STATUTES

TEX. CODE CRIM. PROC. art. 1.15 .............................................................................................. 12

TEX. PENAL CODE § 7.01 ............................................................................................................. 13

RULES

TEX. R. APP. P. 38.2(a)(1)(A) ....................................................................................................... i

iv

TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

Appellant was charged by indictment with capital murder and two

aggravated robberies, all alleged to have been committed within a period of

one month (CR1 17, CR2 4, CR3 4).1 The State reduced the capital murder

charge to aggravated robbery, and appellant plead guilty to all three

aggravated robberies without an agreed recommendation (CR1 142, CR2 12,

CR3 7). After the completion of a presentence investigation report (PSI), the

court sentenced appellant to 40 years in the Institutional Division of the

Texas Department of Criminal Justice (CR1 153, CR2 21, CR3 21). Appellant

filed notice of appeal, and the court certified his right to appeal (CR1 149,

156, CR2 24-26, CR3 24-26).

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1The record consists of a one volume clerk’s record in each case and a two volume

reporter’s record, which all three cases share. The clerk’s record in cause No. 1378279 (a

capital murder case, reduced to an aggravated robbery against Hamid Waraich at a Boost

Mobile store which occurred on February 18, 2013) will be referred to as CR1. The clerk’s

record in cause No. 1458347, (another aggravated robbery, this time against Sirajuddin

Hudani, which occurred on February 7, 2013), will be referred to as “CR2. The clerk’s

record in cause number 1458348 (another aggravated robbery of Jose Salas, the manager

of a McDonalds, as he made his bank deposit, which occurred on January 22, 2013), will be

referred to as CR3.

STATEMENT OF FACTS

1) Cause No. 1378279, capital murder reduced to aggravated

robbery, committed February 18, 2013.

On February 18, 2013, Johntay Gibson, Eric Washington, and appellant

were involved in the robbery of a Boost Mobile cell phone store (State’s

Exhibit 2).2 Gibson and Washington entered the store wearing masks and all

black. Washington guarded the door and robbed a customer while Gibson

ordered the owners of the store to lie on the floor and emptied the cash

register. Washington then fired his gun once, shooting Hamid Wariach, one

of the owners of the store, in the back and killing him. Gibson and

Washington ran out of the store and escaped in the getaway car driven by

appellant, who had been waiting for them.

The police investigation eventually led to Jermaine Green, the owner of

the car used during the robbery, who told police that he knew Gibson,

Washington and appellant used his car to “hit a lick.” Washington also gave a

statement naming Gibson as the shooter and appellant as the getaway driver.

Appellant was untruthful in his initial conversations with the police and

tended to minimize his involvement in the offense. After being charged with

2The next three paragraphs, detailing the offense and appellant’s confession, come from

page 1-2 of the Pre-sentence Investigation (PSI) report entered into evidence at

appellant’s sentencing hearing.

2

the capital murder, however, appellant gave a statement admitting that he

was the driver, that he knew Gibson and Washington were going to rob the

store, and that Gibson got in the car after the robbery and admitted to

shooting the owner of the store. A safe was also found in appellant’s

apartment containing bullets matching the same caliber as that used in the

murder, a ski mask, a bandana, and an offender card and other identification

belonging to Gibson.

2) Cause No. 1458347, aggravated robbery committed

February 7, 2013

At 3:10 p.m. on February 7, 2013, two men robbed a different Boost

Mobile store (State’s Exhibit 2).3 One of the men stood guard at the door

while the other pistol whipped and forced Sirajuddin Hudani to open the

store safe. The two men took $600 cash, several cell phones, and Hudani’s

credit cards. Approximately an hour later, at 4:28 and 4:30, one of Hudani’s

credit cards was used at a Wal-Mart. Surveillance video showed appellant

and Gibson using the card. Witness Joseph Davis told police that he met

Gibson and appellant at the Wal-Mart that day where they told Davis about

3The next paragraph, detailing the offense comes from pages 3-4 of the Pre-sentence

Investigation (PSI) report entered into evidence at appellant’s sentencing hearing. See

State’s Exhibit No. 2.

3

“having just hit a lick.” In addition, a search of appellant’s apartment turned

up two of the cell phones taken during this aggravated robbery.

3) Cause No. 1458348, aggravated robbery committed

January 22, 2013

On January 22, 2013, Jose Salas was leaving the McDonalds he managed

to deposit the restaurant’s earnings in the bank when he was robbed and

pistol whipped (State’s Exhibit No. 2).4 The robbers got away with around

$20,000 in cash. Appellant, an assistant manager at the McDonald’s, knew

that the aggravated robbery was occurring and was the lookout for the

robbers. He told police that his job was to let the robbers know if the police

had been called (he was at work at the McDonald’s at the time of the offense).

Appellant received $2,000 for his participation in the crime.

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4The next paragraph, detailing the offense, comes from pages 3-4 of the Pre-sentence

Investigation (PSI) report entered into evidence at appellant’s sentencing hearing. See

State’s Exhibit No. 2.

4

SUMMARY OF THE ARGUMENT

Appellant’s pleas of guilty were voluntarily made. Appellant was

properly admonished in writing and by the trial court on the record, and

presented no evidence to indicate that he was unaware of the consequences

of his pleas. Appellant’s guilty pleas were also supported by the evidence.

Appellant’s judicial confessions and his statements to the judge, along with

the explanation of the offenses presented in the PSI, provided sufficient

evidence to support his pleas of guilty.

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REPLY TO APPELLANT’S FIRST AND SECOND ISSUES

PRESENTED

Appellant argues in his first issue that his pleas of guilty to these three

offenses were involuntary because he “lacked the necessary understanding of

the nature and consequences of his plea.” (appellant’s brief, p 4). In a related

point of error, appellant argues that the evidence was insufficient to support

his pleas of guilty. A review of the plea papers and appellant’s statements at

5

the plea and sentencing hearings, however, indicate that appellant’s pleas

were both voluntarily made and supported by the evidence.

A. The circumstances of appellant’s pleas

At the time appellant entered his pleas of guilty he was charged with

participating in three aggravated robberies (one of which was reduced from a

capital murder), all of which occurred within a period of one month (RR1 3).

Appellant plead guilty to all three aggravated robberies and agreed to be

sentenced by the trial court after the completion of a PSI (CR 143, RR1 3).

Appellant signed plea papers where he confessed that the allegations

stated in the indictments were true and that he committed the crimes on the

alleged dates (CR1 143, CR2 12, CR3 7). He also initialed all the written

admonishments explaining what rights he was waiving, the consequences of

his pleas, and acknowledging that his pleas were “freely and voluntarily

made.” (CR1 142-147, CR2 11-17, CR3 6-12).

The trial court orally admonished appellant as to his rights and the

effect of his signing the plea papers and asked him if, understanding that he

could receive anywhere from deferred adjudication to life in prison, he still

wished to go forward with his plea of guilty (RR1 3-7). Appellant stated that

he did (RR1 7). The trial court then asked defense counsel whether he had

6

reviewed all the paperwork with appellant, answered all his questions, and

believed that appellant was competent to enter these pleas (RR1 7). Counsel

replied that appellant was competent and cooperative, and that together they

had reviewed the offense reports, the transcript of co-defendant’s capital

murder trial (concerning the aggravated robbery of Hamid Waraich) and the

transcript of appellant’s statement that he had given to the police (RR1 8).

The trial court then went on to admonish appellant as to the effect of his

having signed the plea papers in these cases:

THE COURT: Okay, now even though you’re pleading guilty in

each of these offenses, the State still must present some evidence

of your guilt. They do that by signing all these sets of papers along

with you and your attorney. These first pages of each of these are

called waivers of constitutional rights, agreement to stipulate and

judicial confession. They each tell you what your rights are that

we’ve talked about and what you’re charge[d] with.

The next page to each of these -- and I’m going to show

them each to you --- says that you’re asking the Court to assess

your punishment after we do the sentencing hearing. And then it

has your signature.

Are those your signatures?

THE DEFENDANT: Yes, sir.

THE COURT: And is this your signature here also?

THE DEFENDANT: Yes, sir.

THE COURT: All right. Did you understand by signing each

of these that you were giving up those rights and admitting to

each of these aggravated robberies?

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THE DEFENDANT: Yes, sir.

THE COURT: The pages after that in each of these offenses

are admonishments which explains [sic] everything to you in

writing. Are those your initials there?

THE DEFENDANT: Yes, sir.

[THE STATE]: Offer State’s 1 in each case, Your Honor.

[DEFENSE COUNSEL] No objections, Your Honor.

THE COURT: All right, No objection, they will each be

admitted. Based upon your pleas of guilty in each of these

offenses, I will find there’s sufficient evidence to find you guilty of

aggravated robbery in each of these offenses.

(RR1 9-11).

The trial court let appellant know that he was withholding making a

finding of guilt until the sentencing hearing, at which time he would review

the PSI and make a determination as to punishment (RR1 11).

At the sentencing hearing, the State introduced the PSI into evidence as

State’s Exhibit No. 2 (RR2 6). Appellant had no objection to this report (RR2

6). Defense counsel also provided letters to the court written on appellant’s

behalf, as well as a handwritten letter by appellant where he accepted

responsibility for his actions (RR2 5-6).5 After reviewing all the evidence and

5

While the PSI is included in volume 2 of the Court Reporter’s record as exhibit 2, the

letters submitted by defense counsel are not included in the appellate record and were not

introduced as exhibits by the defense.

8

hearing oral argument from both sides (where defense counsel emphasized

that appellant had finally taken responsibility for his actions), the court found

appellant guilty of all three aggravated robberies and sentenced him

accordingly (RR2 7, 12).

B. Appellant’s pleas were voluntary

A record which indicates that the trial court properly admonished the

defendant presents a prima facie showing that the guilty plea was made

voluntarily and knowingly. See Martinez v. State, 981 S.W.2d 195, 197 (Tex.

Crim. App. 1998);Arreola v. State, 207 S.W.3d 387, 391 (Tex. App. –Houston

[1st Dist.] 2006, no pet.). When the State presents such a record, the burden

shifts to the defendant to show that he entered the plea without

understanding the consequences. Id., at 391; Edwards v. State, 921 S.W.2d

477, 479 (Tex. App.—Houston [1st Dist.] 1996, no pet.). When considering

the voluntariness of a guilty plea, the entire record should be considered.

Martinez v. State, at 197. An accused who attests when he enters his plea of

guilty that he understands the nature of his plea and that it is voluntary has a

heavy burden on appeal to show that his plea was involuntary. Id.;

Dusenberry v. State, 915 S.W.2d 947, 949 (Tex. App.—Houston [1st Dist.]

1996, pet. ref’d).

9

Appellant gave no indication at either hearing that he did not

understand the consequences of his plea of guilty to these offenses.

Appellant, however, argues that his pleas were involuntary based on the fact

that, when discussing his role to the Court in the aggravated robbery of

Hudani, he was less than forthcoming in admitting his complete role in the

offense, and questioned why he could be guilty for just using a stolen credit

card that he knew had been taken in an aggravated robbery (RR1 21-23).

From this testimony, appellant argues that he did not understand the

consequences of his plea.

In fact, appellant would not be guilty of aggravated robbery if only

using a credit card he knew to be stolen was the extent of his involvement in

the offense. However, the facts of the offense as explained in the PSI establish

that appellant’s involvement in the aggravated robbery of Hudani at the

Boost Mobile store was greater than just using a stolen credit card. As the

State mentioned in the plea proceeding, Davis told police that appellant and

Gibson told him they had “just hit a lick” at the time they used the credit card

(RR1 23, State’s Exhibit No. 2, p 4). The police also found cell phones stolen

during that aggravated robbery in appellant’s apartment (State’s Exhibit No.

2, p 4).

10

Furthermore, as appellant himself acknowledges, simply because a

defendant’s subsequent testimony conflicts with his judicial confession, the

trial court is not required to sua sponte withdraw his plea of guilty or hold a

hearing to determine whether a defendant’s plea is voluntary. Moon v. State,

572 S.W.2d 681, 682 (Tex. Crim. App. 1978) (holding judge was not required

to withdraw defendant’s plea of guilty supported by judicial confession when

evidence introduced by defendant raised issue of his being guilty of a lesser

offense); Aldrich v. State, 104 S.W.3d 890, 893 (Tex. Crim. App. 2003) (finding

court not required to determine voluntariness of plea of guilty supported by

judicial confession when defendant’s subsequent testimony raised defensive

issue); Brown v. State, 11 S.W.3d 360, 362-63 (Tex. App. –Houston [1st

Dist.]2000, pet. ref’d)(holding trial court not required to withdraw guilty plea

sua sponte when evidence is adduced that either makes the defendant’s

innocence evident or raises an issue as to guilt).

At no time during the initial hearing where appellant pled guilty or at

the subsequent hearing where appellant was found guilty and sentenced did

he ever attempt to withdraw his pleas of guilty or indicate that he did not

understand the consequences of his pleas. Throughout both proceedings

appellant’s position was that he wished to be sentenced by the court for his

involvement in all three crimes. This was the position advanced by defense

11

counsel as well, when he argued that appellant had finally taken

responsibility for his actions (RR2 8). Appellant has failed to meet his burden

of proof to show that he made his pleas of guilty without understanding the

consequences of his pleas. Arreola v. State, 207 S.W.3d at 393.

C. The evidence is sufficient to support appellant’s pleas of guilty.

Texas Code of Criminal Procedure article 1.15 requires the State “to

introduce evidence into the record showing the guilt of the defendant….” TEX.

CODE CRIM. PROC. ANN. art. 1.15 (West 2005). A judicial confession, standing

alone, is sufficient evidence to establish guilt and sustain a guilty plea.

Dinnery v. State, 592 S.W.2d 343, 354 (Tex. Crim. App. 1979) (op. on reh’g);

Staggs v. State, 314 S.W.3d 155, 158-60 (Tex. App.—Houston [1st Dist.] 2010,

no pet.) Stewart v. State, 12 S.W.3d 146, 148 (Tex. App. –Houston [1st Dist.]

2000, no pet.) A judicial confession may take the form of an affirmative

acknowledgment by the defendant that allegations in the indictment are true

and correct. Dinnery at 352; Stewart at 148.

In the instant case, appellant confessed in his plea papers that the

allegations in the indictments were true and that he committed the offense on

the alleged dates. Appellant also admitted before the court that he was

12

pleading guilty because he was guilty of each of the offenses (RR1 4). See

Dinnery, 592 S.W.2d at 352 (holding testimony by the appellant that the

indictment was “true and correct” was tantamount to a statement that all the

allegations of the indictment were true and correct and was a judicial

confession); Woods v. State, 398 S.W.3d 396, 400-01 (Tex. App. –Texarkana

2013, pet. ref’d) (holding defendant’s answer that allegations in indictment

were true sufficient to constitute judicial admission of commission of

offense).

Finally, the PSI entered into evidence also provided proof of the facts of

these cases and the extent of appellant’s involvement in the crimes. See

Brewer v. State, No. 1270–03, 2004 WL 3093224, at *2–3 (Tex. Crim. App.,

2004) (opin. not designated for publication) (finding PSI report can be used

for purposes of finding enhancement allegations true). Jackson v. State, 2014

WL 6462391, at *2-3 (Tex. App. –Houston [14th Dist.] 2014, pet. ref’d )(opin.

not designated for publication) (same); See also, Stewart, at 148-49 (holding

evidence introduced at punishment phase of trial can support plea of guilty).

Appellant ignores all the evidence supporting the trial court’s finding of

guilt and focuses solely on appellant’s testimony to the court about the extent

of his involvement in each offense, as if this is the only evidence which can be

considered. Yet even this evidence would be a sufficient basis in itself for

13

finding that appellant was guilty of at least two of the aggravated robberies;

appellant admitted his guilt as a party in the Waraich robbery when he

acknowledged being the getaway driver for Gibson and Washington after

knowing they had robbed and shot Waraich and confessed that in the

robbery of Salas he acted as a lookout and received $2,000 for his

participation (RR 1 13-15, 18-20). See TEX. PENAL CODE § 7.01, 7.02; Johnson v.

State, 6 S.W.3d 709, 711 (Tex. App. –Houston [1st Dist.]1999, pet.

ref’d)(finding defendant guilty as party to aggravated robbery when she

drove getaway car and knew co-defendant had deadly weapon); Rollerson v.

State, 227 S.W.3d 718, 726 (Tex. Crim. App. 2007) (finding appellant guilty of

burglary as a party even if he was only a “lookout.”). The fact that appellant

minimized his involvement in the third aggravated robbery he committed

when he claimed only to use a stolen credit card did not negate the fact that

he admitted guilt for this offense in his plea papers and in open court. See

Cammack v. State, 645 S.W.2d 866, 869 (Tex. App.—Dallas 1983, pet. ref'd)

(holding that testimony from defendant contradicting his written confession

did not make his confession insufficient to support his guilty plea).

In short, the plea papers, appellant’s statements to the court, and the

evidence at the punishment hearing all support the finding that appellant’s

pleas were voluntarily made and that there was sufficient evidence to

14

support all three findings of guilt. Appellant’s two issues presented are

without merit and should be overruled.

PRAYER

The State respectfully requests that this Court affirm the judgment of

the trial court.

DEVON ANDERSON

District Attorney

Harris County, Texas

/s/Kimberly Aperauch Stelter

KIMBERLY APERAUCH STELTER

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826

State Bar Number: 19141400

Stelter_kimberly@dao.hctx.net

15

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing instrument is being served

by EFileTXCourts.Gov e-filer to the following email address

Thomas J. Lewis

Attorney at Law

1602 Washington Ave.

Houston, Texas 77007

Tjlaw2@comcast.net

/s/Kimberly Aperauch Stelter

KIMBERLY APERAUCH STELTER

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826

State Bar Number: 19141400

stelter_kimberly@dao.hctx.net

16

CERTIFICATE OF COMPLIANCE

The undersigned attorney certifies that this computer-generated

document has a word count of 3,782 words, based upon the representation

provided by the word processing program that was used to create the

document.

/s/Kimberly Aperauch Stelter

KIMBERLY APERAUCH STELTER

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002-1923

(713) 755-5826

TBC No. 19141400

stelter_kimberly@dao.hctx.net

17