Johnson v. State
Johnson v. State
Opinion of the Court
OPINION
delivered the opinion of the Court
Appellant asks whether a trial judge has the discretion to impose jail time as a condition of community supervision immediately after he has heard unsworn, uncross-examined victim-allocution statements that they wanted appellant to go to jail.
I.
In this case, appellant was charged with two counts of indecency with a child. The jury acquitted him of the count involving Savannah, but convicted him of the count involving Brittany. The jury then assessed his punishment at five years’ imprisonment and a fine of $5,000, but further recommended that both the fine and the imprisonment be probated and that appellant be placed on community supervision. The trial judge accepted the jury’s punishment verdict and imposed the “standard” conditions of community supervision, including sex-offender registration. After the judge completed his oral pronouncement of the sentence and community supervision conditions,
Immediately thereafter, the trial judge imposed additional conditions of probation, including the requirement that appellant sell his home
II.
The court of appeals correctly noted that Article 42.03 allows “a victim statement only after sentencing in order to alleviate any risk that the statement might affect
It is widely acknowledged by commentators that victim-allocution statements are to have “no effect” upon the jury or judge’s decision making.
The timing of a victim’s allocution statement was obliquely addressed by two members of this Court in a concurring
The court of appeals avoided this issue by holding that it was at most harmless error because the trial court retained authority to modify or amend the conditions of probation at any time during the period of community supervision.
First, the trial judge did not modify or amend the conditions of community supervision. Indeed, the trial judge said that he was “imposing” jail time as a part of the “terms and conditions of probation;” he did not state that he was “amending” or “modifying” his original probation conditions.
III.
We do not doubt the sincerity of the trial judge in this case. He stated, on the record, that he did not modify appellant’s sentence because of any influence caused by the reading of the victim-allocution statements.
Although the trial judge erred by violating the express terms of article 42.03, we are confidant that the honorable judge will do what he promised to do if he knew that his imposition of the “180-days-in-jail” condition was illegal: Delete it from the judgment. If the trial judge finds that appellant is a less than perfect probationer, he may always amend the conditions of community service to include jail time as long as that condition is not inextricably connected to the victims’ allocution statements asking for jail time.
We therefore reverse the judgment of the court of appeals and remand this case to the trial court for further proceedings consistent with this opinion.
. Appellant’s sole ground for review is:
The court of appeals erred in holding that a trial court can, under Article 42.12 § 12(c) of the Code of Criminal Procedure, modify the conditions of a defendant's probation to require 180 days in jail after victim allocution under Article 42.03 § 1(b) of the Code of Criminal Procedure.
. Tex.Code Crim. Proc. art. 42.03, § 1(b)(2) (emphasis added).
. Johnson v. State, 240 S.W.3d 76, 79 (Tex.App.-Austin 2007) ("The court below was and remains authorized to impose jail time as a condition of appellant's community supervision at any time during the five-year supervision period. Under the circumstances, if the court's determination to impose the jail time condition was made after the victim statements were made, it was at most harmless error.").
. The record shows that the trial court completed his sentencing before the allocution statements.
Court: This trial began on Monday, the 25th of September. It is concluded today, which is September 28th with the jury assessing
Defense: No.
Court: State?
State: The State has no reason.
Court: Then it is the sentence of this Court that you be placed on probation for a term of five years and a fine of $5,000 that will be probated also. You will be placed upon the standard conditions of probation and the ones [that] apply to sex offenders. You'll also have to register as a sex offender.
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So that will be the sentence of the Court.
. When reading the punishment charge to the jury, the trial judge had admonished the jury that they "cannot consider the evidence about the other girl, [Savannah] that y'all did not find him guilty of.” The court of appeals noted, "In light of appellant's acquittal on count one, one might question whether [Savannah] was a victim within the meaning of article 42.03. Appellant does not raise this issue, and we express no opinion on the matter.” Johnson, 240 S.W.3d at 78 n. 2.
. Appellant did not object to this condition because the evidence at the punishment hearing showed that he had already moved away. Defense counsel told the jury that "he's going to sell the home, sell his house. He has no intention of ever going back to Sandy Harbor.”
. Tex.Code Crim Proc. art. 42.03, § 1(b) ("The court reporter may not transcribe the [victim’s post-sentencing] statement”).
. Appellant’s counsel objected as follows:
Defense: Judge, before the victims and their mothers were allowed to allocute, the law requires that you impose sentence before allocution takes place, and you did impose sentence earlier, and you did not impose a condition of probation of jail. It is improper for the Court to sit — not only sit through and listen to it, but you actually read one of the victim's statements. And to then come in after that and re-impose sentence and—
Court: I didn't impose the terms and conditions of probation, though. I didn’t impose any terms and conditions of probation at that point in time.
Defense: Well, we object to — we object to you imposing a condition of 180 days after you allowed the victims to allocute and you yourself read one of the victim's statement. That is totally what — that's exactly what the law is designed to prevent is for you from being swayed by what may have been inadmissible evidence and then go back and sentence the defendant and we object to that.
Court: And I think the Court presumes that— the appellate court presumes that the trial court does not consider inadmissible evidence, but this Court sat through the whole trial and heard all of the evidence that was in the trial, which clearly included what I read and what basically was stated. I mean, the Court could logically deduce most of what was read in that victim impact statement. That did not influence this Court to determine to sentence him to 180 days in the county jail because I had not imposed what conditions of probation I was going to impose. I just read that’s what the jury did and they recommended it be probated.
. Johnson, 240 S.W.3d at 78.
. Tex.Code Crim Proc. art. 42.03, § 1(b) & (b)(2) & (b)(3).
. See Gifford v. State, 980 S.W.2d 791, 793-94 (Tex.App.-Houston [14th Dist.j 1998, pet. ref’d) (finding reversible error when the defense attorney failed to object to the victim's father's unsworn victim-allocution statement given before the trial judge assessed punishment, and stating that, under Article 42.03, “the legislature has severely limited the use and impact of the statement by requiring that it be made after punishment has been assessed.").
. See 43 George E. Dix and Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 38.84 (2d ed. 2001) (victim allocution "is intended to have no effect on decisions made in the criminal process”); D. Mark Elli-ston, 2 Texas Practice Guide: Criminal Practice and Procedure § 25:49 (2007) ("An oral victim [allocution] ... is an opportunity for the victim to vent his or her feelings.... The statement is not evidence and ... is intended to have no effect on decisions made in the criminal process”); Ken Anderson and John Bradley, Texas Sentencing § 10.2[b][6] (5th ed. 2007) ("After a judge has pronounced sentence or imposed conditions of community supervision, a victim may appear in person and tell the judge the victim’s views about the offense, the defendant, and the effect of the offense on tire victim.”); Andrew L. Johnson, Sentence Modification in Texas: The Plenary Power of a Trial Court to Alter Its Sentence After Pronouncement, 38 St Mary's L.J. 317, 358-60 (2006) (noting that victim-allocution statements are "one-sided affairs that may not be transcribed" and provide “the crime's victims an ability to address the court after the sentence is pronounced.”).
As one commentator explained, the original victim allocution bill, House Bill 520, was intended
to allow crime victims to give such a statement before sentence pronouncement. However, there was concern expressed at the legislative hearings that victim allocution statements might have an impact on sentencing. Legislators amended the proposed Bill by allowing allocution only after sentence pronouncement. Thus, the legislature intended to place victim allocution statements after the trial judge's pronouncement of the sentence to avoid any chance that the statement would affect the sentence given.
Johnson, Sentence Modification in Texas, 38 St Mary's L.J. at 360 (footnotes omitted).
. 165 S.W.3d 695, 699, 703 (Tex.Crim.App. 2005) (Cochran, J., concurring, joined by Price, J.) (stating that a trial judge's decision to resentence a defendant would be "illegal” if it “was based upon a statutorily prohibited consideration of the victim impact sentence,” but noting the Court could not address that question because it was not presented in the State's appeal).
. 165 S.W.3d at 706 (Keasler, J., dissenting, joined by Hervey, J.) ("[The] 'Legislature specifically enacted Article 42.03 to allow victim statements only after sentencing in order to alleviate any risk that the statement would affect the partiality of the fact finder at the punishment phase' ") (quoting Garcia v. State, 16 S.W.3d 401, 408 (Tex.App.-El Paso 2000, pet. ref'd)).
. Here, as in Aguilera, the fact that the modification of appellant’s conditions of community service came immediately on the heels of the trial court's reading of the victim's allocution statement appears more than fortuitous. As Judge Keasler noted in his Aguilera dissent:
This statement defies credibility. It is remarkably coincidental that the judge chose to reduce [the defendant’s] sentence right after hearing the victim’s statement. I cannot condone this type of behavior. It seems an obvious attempt to circumvent Art. 42.03.
165 S.W.3d at 706 (Keasler, J., dissenting).
. In Aldrich v. Stale, - S.W.3d -, No. 2-05-303-CR, 2008 WL 5057647, at *29-31 (Tex.App.-Fort Worth Nov.26, 2008, no pet. h.), the Fort Worth Court of Appeals held that it was harmful error, in violation of article 42.03, for the victims to give unsworn victim-allocution statements before the trial court assessed punishment. See also Gifford, 980 S.W.2d at 793-94 (ineffective assistance of counsel when counsel failed to object as victim's father gave an unsworn allocution statement before punishment was assessed).
. Johnson, 240 S.W.3d at 79; see note 3 supra.
. See note 8 supra.
. The trial judge stated:
I’ll tell you what we’ll do. I’m going to leave my sentence intact. You can file-you can file a legal motion to show me that I can't do that legally. And if I can’t do that legally, then I'll file a judgment nunc pro tunc and amend the conditions of probation where he doesn't have to do 180 days.
. See Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (although a prosecutor is ordinarily entitled to exercise his peremptory strikes for any reason, he may not challenge jurors solely on account of their race).
. See note 8 supra.
Dissenting Opinion
filed a dissenting opinion in which HERVEY, J., joined.
Before the victims’ statements were made in this case, the trial judge orally imposed (1) the sentence, (2) the standard conditions of community supervision, and (3) the sex-offender conditions of community supervision. After the victims’ statements, the judge imposed additional conditions of community supervision. Because the law allows a trial judge to impose new conditions of community supervision at any time, and the trial judge in this case stated that he was not influenced by the victims’
The precise language of the victim-allo-cution statute is important, but the Court never quotes it. Article 42.03 does not, in fact, say that any victim-allocution statements must be made after the trial judge announces the conditions of community supervision.
The community supervision statute contains a general provision that allows the trial judge to alter or modify the conditions of community supervision “at any time, during the period of community supervision.”
“At any time” is broad, unambiguous language. Its plain meaning includes events occurring on the same day that the judgment is pronounced. Indeed, the purpose section of the community supervision statute indicates an intent to confer the broadest possible flexibility on a trial judge in overseeing a person’s community supervision:
It is the purpose of this article to remove from existing statutes the limitations, other than questions of constitutionality, that have acted as barriers to effective systems of community supervision in the public interest.5
This broad grant of authority would seem to include the authority to impose additional conditions of community supervision, even when the announcement of those conditions follows on the heels of an orally pronounced judgment, and victim-allocution statements made pursuant to article 42.03.
The Court contends that the 180-days-in-jail condition was not an amendment to the original conditions of community supervision because it was contained in the original written judgment.
Relying by analogy upon Batson v. Kentucky,
Not only does the Court impose a Bat-son-type rule with far less justification than in the Batson context, but the rule imposed is in fact far more sweeping than Batson. Under Batson’s three-pronged approach, when the party alleging a Bat-son violation establishes a prima facie case, the opposing party has the opportunity to offer a race-neutral reason for the strike, and if one is given, then the moving party has the burden of showing intentional discrimination.
. Article 42.03 provides that a victim allocution statement must be made:
(1) after punishment has been assessed and the court has determined whether or not to grant community supervision in the case;
(2) after the court has announced the terms and conditions of the sentence; and
(3) after sentence is pronounced.
Tex.Code Crim. Proc art. 42.03, § 1(b). The Court claims that article 42.03 is ‘'unambiguous,” but, contrary to Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991), the Court applies the statute to “conditions of community supervision,” though that term does not appear in the statute. Article 42.03 says only that statements must be made after the decision on whether to grant community supervision is made, after the terms and conditions of the sentence have been announced, and after sentence is pronounced. In the same chapter, the Legislature defined the term "sentence,” and we have relied upon that definition to hold that the term "sentence” does not include the conditions of community supervision. Speth v. State, 6 S.W.3d 530, 532, 532 n. 4 (Tex.Crim.App. 1999)("The sentence and the conditions of community supervision are each separate parts of the ‘judgment.’ ” Citing Tex.Code Crim. Proc art. 42.02).
. TexCodeCrim Proc. art. 42.12, § 11(a).
. See id.
. Id., § 12(c).
. Tex.Code Crim Proc. art. 42.12, § 1.
. Court's op. at 350.
. Ex parte Huskins, 176 S.W.3d 818, 820 (Tex.Crim.App. 2005).
. 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
. Court’s op. at 351.
. The Court holds that the whole purpose of Article 42.03 is to avoid the appearance of judicial partiality. But the legislative intent in enacting the statute related not to the appearance of partiality but to the actual fact of partiality. See State v. Aguilera, 165 S.W.3d 695, 706 (Tex.Crim.App. 2000)(Keasler, J. dis-sentingXquoting Garcia v. State, 16 S.W.3d 401, 408 (Tex.App.El Paso 2000, pet. ref'd,)).
. Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006).
. The Court claims that appellant did not object to this condition because ‘‘the evidence at the punishment hearing showed that he had already moved away.” Court's op. at 348
Dissenting Opinion
DISSENTING OPINION
filed a dissenting opinion in which KELLER, P.J., and HERVEY, J., joined.
I strongly disagree with the decision rendered by the majority. First, the plain language of Article 42.03, Section 1(b)— which we are bound to follow unless ambiguity or absurdity arises
Next, even assuming that Article 42.03, Section 1(b) does apply, I believe that the trial judge did not err by imposing 180 days confinement as a condition of Ivan Johnson’s community supervision immediately after hearing the victim allocutions. Article 42.12, Section 11(a) allows a trial judge to “alter or modify” the conditions of a defendant’s community supervision “at any time[ ] during the period of [ ] supervision.”
Now I turn to the majority’s reasoning and holding. First, the majority contends that, in State v. Aguilera,
Furthermore, I cannot understand how the members of the Court, who comprised the majority in Aguilera, can now champion the majority’s position today. The same members of the Court, who said that it is permissible for a judge to lower a defendant’s sentence,
Finally, the majority contends that the trial judge did not alter or modify the conditions of community supervision because the 180-day confinement term was part of the original judgment, which was signed the same day Johnson was placed on supervision. In making this argument, the majority ignores our case law that says a trial judge’s oral pronouncement of a sentence, or suspension of a sentence, controls over a written judgment.
Based on the foregoing reasons, I dissent to the Court’s judgment.
. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991).
. Speth v. State, 6 S.W.3d 530, 532 (Tex.Crim.App. 1999).
. Tex.Code Crim Proc. Ann art. 42.12 § 11(a); see also Tex.Code Crim. Proc. Ann. art. 42.12 § 10(a).
. Tex Code Crim. Proc. Ann art. 42.12 § 12(a).
. Tex.Code Crim. Proc. Ann. art. 42.12 § 12(c).
. Tex.Code Crim. Proc. Ann. art. 42.03 § 1(b).
. See Ex parte Wilkinson, 641 S.W.2d 927, 931 (Tex.Crim.App. 1982) (discussing the doctrine of in pari materia).
. 165 S.W.3d 695 (Tex.Crim.App. 2005).
. Id. at 696.
. Id. at 699 (Cochran, J., concurring).
. Id. at 706 (Keasler, J., dissenting).
. Orloff v. Willoughby, 345 U.S. 83, 87, 73 S.Ct. 534, 97 L.Ed. 842 (1953).
. Rodarte v. State, 860 S.W.2d 108, 109-10 (Tex.Crim.App. 1993).
Reference
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