Kenneth Dwayne Johnson v. The State of Texas--Appeal from 195th District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-94-163-CR

KENNETH DWAYNE JOHNSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 195th District Court

Dallas County, Texas

Trial Court # F93-44087-PN

O P I N I O N

Appellant Johnson appeals from his conviction for aggravated robbery (enhanced by two prior felony convictions), for which he was sentenced to sixty years in the Texas Department of Criminal Justice.

Appellant robbed Sara Roby, a Dallas school teacher, at gunpoint taking her car, money and personal property. Roby left the school at about 12:30 p.m. on July 2, 1993, and walked across the parking lot to her car. As she closed the door, a man she identified in court as Appellant forced the door open and put a gun in her side. Roby testified Appellant shouted, "Scream and you're dead, bitch," and began pulling off her watch. He took her ring, keys, purse, ripped open her blouse and hit her across the face with the gun. He kicked her out of the car and then drove away in the car. Appellant was also identified by Christopher Holland who witnessed the robbery. Appellant's fingerprints were found on Roby's car after it was recovered.

The jury found Appellant guilty of aggravated robbery. At the punishment phase, the State called Beatrice French who testified that, in her opinion, Appellant's character for being peaceful and law abiding was bad. The jury also found both alleged felony convictions to be "true," and assessed Appellant sixty years in prison.

Appellant appeals on one point of error: "The appellant was denied effective assistance of counsel in the punishment phase of the trial when his court-appointed counsel allowed inadmissible reputation testimony to come before the jury."

The standard for review when ineffective assistance of counsel is alleged in the punishment phase is set out in Ex parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1989); Strickland v. Washington, 466 U.S. 688; and Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). These cases require a showing that counsel's performance was deficient by norms of the community, plus a showing that the deficiency so undermined the proper function of the adversarial process that the trial cannot be relied on as having produced a just result. This is judged by the totality of counsel's representation and not by isolated acts or omissions. Solis v. State, 792 S.W.2d 95, 100 (Tex. Crim. App. 1980). The court must indulge a strong presumption that the challenged action might be considered sound trial strategy. Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992).

At the punishment phase, the State called Beatrice French who testified that she came in contact with Appellant on June 15, 1993. Ms. French was asked: "As a result of your contact with [Appellant] back on June 15, 1993, do you have an opinion as to his character as a peaceful and law abiding citizen?" Answer: "Yes." Question: "What is that opinion? Is his character as a peaceful and law abiding citizen good or bad in your opinion?" Answer: "Bad."

Counsel for Appellant did not object to the introduction of the opinion stated by Ms. French, and did not cross examine her regarding the basis for her opinion. Appellant contends this renders his trial counsel ineffective.

Tex. R. Crim. Evid. 405(a) provides: "In all cases in which evidence of character or trait of character is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. Provided however that to be qualified to testify concerning the character or trait of character of an accused, a witness must have been familiar with the reputation, or with underlying facts or information upon which the opinion is based, prior to the day of the offense." (Emphasis added).

French testified her opinion was based on her contact with Appellant on June 15, 1993. The charged offense occurred July 2, 1993, French's testimony was admissible and trial counsel committed no error in not objecting to same. We further conclude that trial counsel did not cross-examine French because he did not want to put the details of the basis of her opinion before the jury.

Assuming, without deciding, that the testimony of Ms. French was somehow inadmissible, trial counsel's failure to object or cross-examine on same was harmless beyond a reasonable doubt under the record in this case. Tex. R. App. P. 81(b)(2).

Appellant's point is overruled. The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Thomas,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed July 19, 1995

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