Johnson v. State

624 S.W.3d 579

Jamaile Burnett JOHNSON, Appellant

v.The STATE of Texas

NO. PD-0553-20

Court of Criminal Appeals of Texas.

Delivered: June 16, 2021

Windi Akins Pastorini, for Appellant.

Patricia McLean, for State.

OPINION

McClure, J., delivered the opinion of the Court.

We granted the State's petition for discretionary review on one ground: Did the court of appeals fail to apply the standard of review correctly in its analysis of Appellant's ineffective assistance of counsel claim? We hold that it did. The medical records that the court of appeals relied upon were not included in the record; it is unclear that counsel's performance was actually deficient; and it is equally unclear as to whether there was prejudice in the failure to secure admission of those medical records. We reverse the judgment of the court of appeals and remand the case to that court to address Appellant's remaining point of error.

FACTS

On November 28, 2016, Veronica Lopez, the complainant, and her husband, Jorge, drove their truck to a tire store called Truck Zone. Jorge parked their brown, 2002 Chevrolet 1500, "cab-and-a-half" with a stripe and tinted windows in the store's parking lot.

Jorge went into the store while Veronica waited in the passenger seat of the truck. The truck was unlocked, with the keys in the ignition, and the motor running. A short time later, Veronica saw Appellant riding his bicycle toward the truck. Appellant opened the driver's side door of the truck and got inside. Veronica noticed that Appellant had a screwdriver, and although he did not point it directly at her, she testified that he threatened her with it and that she was very scared. Veronica asked if Appellant worked for the store and he told her that he did not, and then was asked by Appellant if she wanted to go for a ride. Veronica testified that she was scared and she yelled and attempted to get out of the truck by opening her door and hanging onto it while Appellant accelerated backwards and forward. She landed on her feet, uninjured, and Appellant drove off.

Jorge called the police, who located the truck a short time later. As the officers approached the truck, Appellant drove off. Law enforcement followed Appellant for about forty-five minutes until he pulled over and was arrested.

At trial, Appellant testified that the truck he took belonged to him. Appellant testified that in the days before the offense, he was driving his truck, a grey, 1997 Dodge 1500 extended cab, and ran out of gas on the Trinity River bridge late one night in November 2016. Appellant testified he locked his truck, left the keys in the ignition, and left the truck behind. Eventually, law enforcement officers arrived and Appellant's truck was towed away. Appellant, who was homeless at the time, encountered the police, who were sufficiently concerned for his well-being that they took him to Spindletop Medical Center in Beaumont for a psychological evaluation. After his evaluation, treatment, and discharge, Appellant remained on the Spindletop Medical Center property without consent, and was arrested for trespassing.

Following his release from jail, Appellant began walking and hitchhiking around Beaumont to look for his truck.

Appellant then walked and hitchhiked back to Houston where his mother, stepfather, cousin, and brother lived. Appellant rode a bicycle around town, looking for his truck. According to his testimony, Appellant rode by the Truck Zone store and spotted the complainant's truck, which Appellant believed was his. According to Appellant, his "mind told [him]" that it was his truck. Appellant explained that the truck that he saw in the Truck Zone store's parking lot resembled his missing truck because it was similar in brand and body style, it had two doors, and it was an extended cab.

Appellant claimed he had a "multipurpose tool" with him while he was looking for his truck because he did not have the keys to his truck and he believed he could unlock the truck with the tool. He also testified that he did not see anyone inside the truck in the Truck Zone store's parking lot because of its tinted windows, and so he was surprised to see a woman inside "his" truck. Appellant held the multipurpose tool in his hand while he began shifting gears, but he did not point it at the woman or threaten her. Appellant said the woman inside the truck smiled at him, so he asked if she wanted a ride. Appellant testified that the woman did not respond so he "moved the truck." Appellant contends that once the woman opened her truck door, he "hit the brake" so that she could get out because he did not want her to be hurt. Appellant testified he saw law enforcement officers driving behind him, but he did not think that they were looking for him, and only stopped the truck at a red light when he saw a law enforcement officer outside his patrol car with a firearm pointed at the truck. Appellant's stepfather, Lewis Armstead, testified that "[c]oming up," Appellant had "schizophrenia or something." Armstead testified that, on the day of the offense, he had been with Appellant at Armstead's mother's house before the offense occurred. While they were there, Appellant went outside and began rubbing grass on himself. When Armstead called out to him, Appellant "looked like he was not there." Afterwards, Appellant laid down on a railroad track and started throwing rocks. The police were called but they did not take Appellant to the hospital. After the police left, Appellant told Armstead he was going to get his truck, left on a bicycle, was gone for about twenty minutes, and returned in a truck that was not his. Appellant's mother, Gwendolyn Johnson, testified that, prior to the offense, Appellant had been in Beaumont. She testified that an Anahuac Police Department officer had called her and informed her that Appellant had been seen, in the rain, on the freeway, licking a guardrail. She testified that she did not know how Appellant got back to Houston. On the day he returned to Houston, Appellant came to her house, and while they had a conversation about where his truck was, Appellant was not able to have a "normal" conversation. When asked to describe how the conversation was not normal, she testified: "I said to him that I didn't have his truck, his brother didn't have his truck, his truck was not in Houston. I don't think he understood or believed that."

After speaking with Appellant, his mother was concerned for his physical well-being. However, she was not successful in getting assistance from local law enforcement. After Appellant's mother testified, the following exchange occurred:

[Defense Counsel]: Judge, I don't have another witness. If I can ask to approach for one brief thing?

THE COURT: Absolutely.

[Defense Counsel]: We're going to offer his medical records.

THE COURT: Response.

[State]: Your Honor, the State objects to relevancy.

THE COURT: Tell me the relevancy at the bench, please.

(Bench conference.)

[Defense Counsel]: These medical records support what Mr. Armstead stated earlier that he is schizophrenic and that he has mental health issues.

[State]: Judge, that all goes to punishment and not to the case in chief.

THE COURT: I'm just asking if it includes the medical records since he came into custody?

[Defense Counsel]: These—this specific set of records does not—this specific set does not include the current incarceration.

THE COURT: Okay. Do we have those records?

[Defense Counsel]: The current records?

THE COURT: Yes.

[Defense Counsel]: If I can explain. I have a portion of the current records and because he's under consistent monitoring they're not—this stamp says incomplete because they're updating daily several times a day.

THE COURT: Any response?

[State]: All of this—if we were in an insanity case or something and they had some expert to testify about these records maybe it would be relevant, but right now there is no relevancy or foundation for this to come in the case in chief, guilt or innocence.

THE COURT: What I have difficulty with is there's no foundation laid, nobody can support the documents that's [sic] here. I mean, that may be something you're able the [sic] arrange at a later point. I'm going to sustain the objection on the basis of foundation. Thank you.

(Bench Conference Concluded.)

DIRECT APPEAL

On appeal, Johnson argued that his trial counsel did not provide him with effective assistance during the guilt phase of trial because counsel did not properly prepare and offer his medical records into evidence in admissible form when the medical records directly related to whether he formed the requisite intent to commit the offense of theft.

The court of appeals held that there was no "... plausible, professional reason for the failure of Johnson's trial counsel to properly prepare and offer Appellant's medical records into evidence in admissible form," and concluded that there was sufficient evidence in the record establishing that trial counsel's performance fell below an objective standard of reasonableness. The court of appeals next determined that Johnson was harmed in that, but for trial counsel's deficiency, the result of the proceeding would have been different.

Justice Goodman dissented and would have held that the record was insufficient to support the ineffective assistance claim. Justice Goodman pointed out that although Appellant filed the medical records with the court of appeals, they are not part of the record, and, according to Texas Rule of Appellate Procedure 34.1, the court cannot consider documents that are not in the record. See Prine v. State , 537 S.W.3d 113, 117 (Tex. Crim. App. 2017) (holding a claim that depends on documents that are not in the record is without merit).

Justice Goodman also wrote that the majority was incorrect to imagine that over 1000 pages of medical records would simply be given to the jury to evaluate on their own. Without an expert to interpret them, there was no error in excluding the records even if the predicate was laid. Not having an...