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Johnson v. State

Court of Appeals of Texas, Fourteenth District

April 26, 2018

CARL JOHNSON, Appellant
v.
THE STATE OF TEXAS, Appellee

          On Appeal from the 338th District Court Harris County, Texas Trial Court Cause No. 1496943

          Panel consists of Chief Justice Frost and Justices Jamison and Busby.

          OPINION

          J. Brett Busby Justice.

         Appellant Carl Johnson was charged with engaging in organized criminal activity by fraudulently using and possessing at least ten but less than fifty items of identifying information, including information belonging to elderly persons at least 65 years of age. See Tex. Penal Code Ann. §§ 32.51(c)(3), (c-1)(1); 71.02(a)(8) (West 2016). Appellant pled guilty without an agreed punishment recommendation and the trial court subsequently sentenced him to sixteen years in prison. Appellant appeals in three issues.

         We begin with appellant's second issue because it impacts his right to appeal. In that issue, appellant contends the trial court erred when it found in his judgment of conviction that he had waived his right to appeal. Because the record establishes that appellant had the right to appeal his conviction, we sustain his second issue and modify the judgment accordingly.

         Appellant argues in his first issue that his guilty plea was involuntary because his attorneys misadvised him about when he would be eligible for parole. We overrule this issue because appellant has not demonstrated that his attorneys' performance was deficient.

         In his third issue, appellant contends that the $135 summoning witness/mileage fee included in his bill of costs violates his confrontation and compulsory process rights guaranteed in the United States Constitution and the Texas Constitution, as applied to him. These same arguments were raised, and rejected, in Merrit v. State, 529 S.W.3d 549, 557-59 (Tex. App.-Houston [14th Dist.] 2017, pet. ref'd). Because the arguments and relevant facts are identical in the two appeals, we overrule appellant's third issue for the same reasons expressed in Merrit.

         Background

         The record shows that appellant was a member of the Felony Lane Gang. Members of this gang work in small groups that travel around the country stealing various items of identification, as well as credit cards, debit cards, and checks. Their normal method of operation was to break into cars parked at locations where the owners frequently leave purses in their cars, including cemeteries and daycare facilities. The gang members would then go to the drive-through lanes of banks and fraudulently obtain cash using the stolen items. The groups operate in a city for a period of time and then move on to another location.

         Houston-area law enforcement received word from the FBI that a Felony Lane Gang group had been operating in Dallas and was heading to Houston. Police were able to locate the group and track their activities before arresting appellant and other members of the gang at a bank after they conducted fraudulent transactions.

         Appellant was charged by indictment with fraudulently using and possessing at least ten but less than fifty items of identifying information while participating with a group of individuals. The indictment further alleged that the identifying information included information belonging to elderly persons at least 65 years of age. See Tex. Penal Code Ann. §§ 22.04; 32.51(c-1)(1). The trial court appointed Emily Detoto as appellant's attorney.[1]

         On February 15, 2016, appellant appeared in court, where the following discussion regarding a plea occurred:

The Court: You stand before this Court charged with a criminal felony offense by indictment. You have a right to have it read to you, to have a jury trial, to confront and cross-examine the state's witnesses, and bring witnesses into court to support any defense you might have. Do you understand and give up those rights?
[Appellant:] Yes, sir.
The Court: Is your client competent?
[Detoto]: He is, Your Honor.
. . . .
The Court: You have the right to appeal any decision made by this Court in this case. Since there is no agreed recommendation, you do not give up your right to appeal. The range of punishment upon conviction is by confinement - - what is this?
[Detoto]: Fifteen to life.
The Court: Say it again?
[Detoto]: Fifteen to life.
The Court: So what is it? A first degree felony?
[State:] Yes. It's a first degree enhanced by the engaging in
organized crime statute.
The Court: All right. The range of punishment upon conviction by confinement in the Texas Penitentiary for a period of five years up to 99 years or life. If the Court further finds that the enhancement paragraph contained in the indictment is true, [then] the minimum instead of being five years in the penitentiary is 15 years in the penitentiary. Do you understand that range of punishment?
[Appellant:] Yes, sir.
The Court: How do you plead, guilty or not guilty?
[Appellant:] Guilty.
The Court: The Court has before it documents marked as State's Exhibit 1. Did you sign these documents freely and voluntarily, and only after they were explained to you by your lawyer?
[Appellant:] Yes, sir.
The Court: Did she answer all your questions?
[Appellant:] Yes, sir.
The Court: Do you have any questions at ...

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