LORENZO DEWAYNE JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee

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State: Texas

Court: Texas Northern District Court

Docket No: 05-09-00133-CR

Case Date: 12/20/2010

Plaintiff: LORENZO DEWAYNE JOHNSON, Appellant

Defendant: THE STATE OF TEXAS, Appellee

Preview:LORENZO DEWAYNE JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed December 20, 2010.

In The Court of Appeals Fifth District of Texas at Dallas ............................ No. 05-09-00133-CR ............................ LORENZO DEWAYNE JOHNSON, Appellant V. THE STATE OF TEXAS, Appellee ............................................................. On Appeal from the 363rd Judicial District Court Dallas County, Texas Trial Court Cause No. F08-51506-PW ............................................................. OPINION Before Justices Morris, Moseley, and Myers Opinion By Justice Myers Lorenzo Dewayne Johnson was convicted of capital murder and sentenced to life imprisonment. In three issues, he argues that the jury improperly rejected his affirmative defense, the evidence is insufficient, and the trial court erred in refusing to allow him to introduce into evidence the redacted portion of a video recording. We affirm. Background Shortly after arriving at work on the morning of November 15, 2007, Detective Roberto Arredondo, Jr., a homicide detective with the Dallas Police Department, learned that a triple shooting and homicide had occurred at an apartment complex in Dallas, Texas. Arredondo and another detective drove to the crime scene. Earlier that morning, at approximately 5:25 a.m., a 911 caller reported hearing gunshots at the apartment complex. At 6:18 a.m., a resident in that same complex called 911 and reported that a shooting victim, later identified as Vincent Corley, had come to the caller's apartment across the breezeway from apartment 177, where the shooting occurred. During the course of his investigation, Arredondo discovered that Corley had received a gunshot wound to the head, but was in good condition. A second gunshot victim, Christopher Dickerson, received a gunshot wound to the spine and was paralyzed from the chest down. The third victim, Brandon Brown (the complainant), was found dead in the bathroom. According to the testimony of the medical examiner, Tracy Dyer, Brown died from a gunshot wound to the head. Arredondo testified that shell casings were found in the apartment. One of the casings was a .25 caliber shell casing; the others were 9mm shells. The detective said that someone had "wiped down" certain areas in the apartment. There were a couple of surveillance televisions in the apartment and some two-by-fours that appeared to have been used as door braces. These discoveries led Arredondo to suspect the apartment could have been used as a "drug house." As the investigation continued and police interviewed survivors and pursued other leads, they identified appellant and a man named Eric Harris, also known as Black, as suspects. Both Corley and Dickerson had picked appellant and Harris out of photographic lineups. Harris was apprehended on January 25, 2008. He did not give a statement. On February 12, 2008, detectives learned that appellant had been apprehended in Minneapolis, Minnesota. Arredondo and another detective, Eddie Lopez, flew to Minneapolis to interview appellant. Appellant waived his Miranda rights and gave a statement, which was videotaped. During the trial, a redacted version of the video recording
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was admitted into evidence and played for the jury. During the interview, appellant told Arredondo he used crack cocaine and that he and Harris had gone to apartment 177 to purchase marijuana. Appellant said that for hours he and the others were drinking, smoking, rapping, and "having a good time." Harris then went into the bathroom and returned with a pistol. Harris told appellant to tie up the others with duct tape. Appellant said the drugs in the house included marijuana, some Ecstasy pills, and bottles of liquid PCP. Appellant admitted he picked up a .380 semiautomatic handgun that did not have a clip in it because it looked "cute" and he "liked it." He also admitted to taking money from the other men at gunpoint. Appellant told Arredondo that he left the apartment twice before the shootings, carrying stolen property to his car. Appellant also said that Harris told him to "wipe down" the apartment, and appellant wiped down all of the areas that Harris told him to wipe down. As he left the apartment and walked to his car, appellant heard gunshots, a pause, and then more shots. He contended this shooting was unexpected. Harris then got into appellant's car and appellant drove him to Harris's girlfriend's house. Appellant said he did not ask Harris what happened because he did not want to know. Appellant also denied knowing that a shooting was going to occur. Although he at first denied being in the bathroom where the shootings occurred, appellant later admitted that he had been in the bathroom and had pointed a gun at the people in there. When Arredondo told appellant that two of the individuals were still alive, he said "they should be able to tell you I didn't shoot them." Appellant also told the detective that, after the shootings, he did not leave town until he went to Minneapolis for drug treatment. Appellant was arrested at the drug treatment facility in Minneapolis. Christopher Dickerson testified that he was in a wheelchair and paralyzed from the chest down because of the shooting. Dickerson knew Harris because he bought Ecstasy pills from him. On the night of the offense, Dickerson and Brown were already at the apartment when Corley arrived. They "smoked a little," and Corley went to bed. Shortly before midnight, appellant and Harris came to the apartment to purchase some marijuana. Dickerson testified that he had never seen appellant prior to that evening. Later, Harris went to the bathroom. Dickerson entered the bathroom after Harris exited, but something appeared to be wrong, so Dickerson turned around and opened the bathroom door. When he did, Harris was pointing a pistol at him. Appellant brought Dickerson to the living and dining area, and Harris ordered him to take off his clothes. Appellant pointed two revolvers at Brown and told him to disrobe. The men took Dickerson's and Brown's money and cell phones, and appellant tied their arms with tape. While Dickerson and Brown were on the floor, Harris went into the bedroom and woke up Corley, who was brought into the living area at gun point and stripped. Appellant bound Corley's arms with tape. Appellant and Harris then marched the three men to the bathroom. Dickerson recalled that appellant and Harris "wiped the apartment down" with sponges. Dickerson heard Harris say something to the effect of, "[W]e going to clean this up and we going to let DPD clean up the rest." Harris told Dickerson that he and his friend had "fucked up." Dickerson believed Harris was angry because he had received only twenty-four Ecstasy pills when he thought he should have received twenty-five. Dickerson said he had children and that Harris "didn't have to do us like that," but appellant said, "let's shut [them ] up," and he wrapped tape around their mouths. Appellant did not say much; Harris appeared to be in charge. Dickerson testified that appellant put their clothes in "a laundry bin that we put trash in," and carried it to the car. Appellant left the apartment twice. Dickerson told appellant there was a bag that contained marijuana and PCP in his car, so appellant went to the car and retrieved it. The three bound men were lined up across the tub with their hands tied behind their backs. They were covered with a blanket. Harris asked them if they were ready to die. Dickerson heard two clicks, and Harris told appellant to "move with that broke ass gun." Dickerson thought it was Harris who started shooting. Dickerson heard five shots, and the third shot hit him. Dickerson remained conscious, but his body felt flushed. He stayed slumped over in the tub until he heard appellant and Harris run out the door. Dickerson called out to Corley and Brown. Corley jumped up and went to the nearby apartment 178 to call the police. When Corley returned to pull Dickerson from the apartment, they discovered that Brown was dead. Dickerson saw Harris with two nine millimeter automatic handguns. Dickerson said that appellant had a revolver, and he may have been carrying a .357 or a .38 caliber weapon. At no time during this episode did it appear to Dickerson that appellant was being threatened or pressured to participate. Vincent Corley testified he was staying at the apartment and, on the night of the offense, he returned to the apartment where he smoked marijuana, "drank some beer," and "went to sleep." After falling asleep, Corley remembered being tapped on the head with a pistol by Harris. Harris told Corley to get up and go to the living room. Harris had two automatic pistols. After reaching the living room, Corley noticed that Dickerson and Brown were on the floor and bound with duct tape. Appellant was pointing a revolver at Brown. Corley had never seen appellant before, and he believed that Harris and Dickerson knew each other. Harris appeared to be in charge, and he told Corley to disrobe. Harris told appellant to tie up Corley with duct
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tape, and Corley's hands were tied behind his back and his mouth was taped. Harris and appellant then gathered up the victims' clothes, money, phones, drugs, and other items. Their clothes were thrown in a trash can. Harris told Dickerson that he had "fucked up." Dickerson was on the ground pleading with Harris. Corley heard Dickerson tell Harris that "he could have whatever he wanted. It didn't have to be like this." Appellant "never said . . . one word," according to Corley. While Harris held the three men at gunpoint, appellant took the stolen items outside to a car. Corley also saw Harris "wiping" things down. After the property was removed from the apartment, Corley heard someone say, "[W]e cleaned up this party, we're going [to] let DPD clean up the rest." The three bound men were then taken to the bathroom, where they were told to bend over the tub. Corley said a blanket was thrown over his head, and he heard Harris tell appellant either that he knew "what to do" or he knew "what time it is." Corley heard three shots. The next thing he remembered was hearing Dickerson call his name. Corley ran across the hall to call the police. Corley had been shot in the head but the bullet "bounced off [his] skull." Police found four spent shell casings in the bathroom. According to testimony from Dineen Corden, a Dallas crime scene detective, and Charles Clow, a firearms and tool mark examiner with the Southwestern Institute of Forensic Sciences, three of the casings were 9mm Luger shells, and the fourth was .25 auto caliber. The bullet recovered from Brown was "consistent with a .38 or .357 caliber bullet," according to Clow. Clow also noted that the ".38/.357" bullet was "consistent with . . . having been fired by a revolver," but he acknowledged that there are .38 and .357 caliber semi- automatic weapons. Andre Sims testified that he lived in Minneapolis and that appellant's brother Vincent had called him to arrange for appellant to travel to Minneapolis for drug treatment. On February 11, 2008, Sims picked up appellant at the bus station in Minneapolis. Appellant appeared to be under a "lot of stress." When Sims asked appellant "how things were going," appellant said, "[T]hings are fucked up. We robbed some drug dealers and they came out shooting and we shot back." Sims, who was then on parole, subsequently reported this conversation to his parole officer. Sims later gave a written statement in which he stated that appellant told him "that it was him and two other guys who did this." Appellant testified that he phoned Harris on the night of the offense to buy marijuana. Harris, who supplied the neighborhood with crack cocaine and marijuana, told appellant that he did not have any marijuana, but he would take appellant to a place where he could purchase it. Appellant picked up Harris and they drove to the apartment, arriving sometime around midnight. Appellant did not see Harris with a firearm. After arriving at the apartment, Dickerson answered the door. Appellant saw Dickerson, Brown, and a third person playing dominoes. There was a handgun on the table. Appellant sat down, drank, and smoked marijuana with them, after which he bought $25 worth of marijuana. Later, the third person left, and Harris and Brown went to buy cigars. Harris appeared to be more friendly to Brown "than he was with everyone else." Harris and Brown returned approximately thirty minutes later. Corley was asleep, and everyone else was "having a good time" smoking marijuana and listening to music. While appellant and Harris played dominoes, Harris kept looking over at where Dickerson and Brown were sitting. Up to that point, appellant saw Dickerson with two guns--a small .380 handgun and another handgun. Appellant told Harris that he was ready to leave, and Harris said he was going to first use the bathroom. When Harris exited the bathroom, appellant heard him say "you know what time it is." Harris then said, "Get up." When appellant stood up and turned around, he noticed that Harris was holding two guns. Harris then told Dickerson, who was standing in front of him, to take off his clothes, and told appellant to wake up Brown, who was asleep on the sofa. Appellant did this, and Harris told Brown to take off his clothes. Harris found some tape and told appellant to tie up Brown and Dickerson. According to appellant, Harris told Brown that he was "sorry that he has to do this." Harris also told Dickerson that he had "fucked up," and that "you don't do me like this." Harris complained that Dickerson had "shorted" him one Ecstasy pill. While appellant was tying up Dickerson, Harris woke up Corley. Harris returned with Corley, ordered him to take off his clothes, and told appellant to tie him up. By this point, appellant knew Harris intended to rob the victims and was "trying to take everything." But appellant did not think Harris was going to shoot anyone. Harris asked Dickerson where the marijuana was, and Dickerson said it was in the car. Harris told appellant to get Dickerson's car keys and go outside to retrieve the drugs. Appellant testified that he did not run away at this point because he had left his car keys in the apartment and slept in his car. Appellant feared Harris would easily find him and his life would be in danger. When appellant returned with the drugs, Harris told him to "take down" the security camera that was on the patio. They brought the victims into the bathroom. Harris told appellant to "wipe the table" and put the victims' clothing in a basket, and then take it outside to the car. When again asked by counsel why he did not try to flee, appellant said he had nowhere to go and feared that he would be easily found. He also stated that, if he had contacted the police, he feared that Harris would have killed him before the police apprehended Harris. After appellant wiped down the table and took the clothes to the car, he went inside and Harris told him to pick
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up the .380 handgun and a blanket. Appellant put the gun in his pocket and took the blanket into the bathroom. Harris told him to throw the blanket over the three men. At that point, appellant could not believe Harris was going to shoot the men, and he was too scared to do anything about it. Harris pulled out a gun and appellant heard a "click." Appellant handed Harris the .380 handgun, and Harris said, "[G]et that raggedy ass gun away from me." Appellant put the pistol in his pocket. When Harris's gun "clicked" a second time, appellant thought he was trying to frighten the victims by using an unloaded gun. Appellant said he was "headed out the door" when he heard the second "click." When he heard the first gun shot, appellant ran towards the door and unlocked it. Realizing he did not have his car keys, appellant ran back to pick them up off the floor and heard two more shots. Once he got outside the apartment, appellant heard three more shots. As appellant ran to his car, Harris yelled for him to stop running. They walked to appellant's car and drove off. Appellant testified that Dickerson, Corley, and Brown were in the bathroom for "roughly" five minutes before they were shot, although he told Arredondo it might have been more than fifteen minutes. Appellant explained the discrepancy by estimating that fifteen minutes elapsed between the time that Harris first pulled the pistols until they fled the apartment. After they fled the apartment, Harris asked for the .380 handgun, and appellant handed it to him. Harris told appellant that he needed to get rid of the pistols, and he ordered appellant to drive them to a house on Wilshire. Harris knocked on the front door and gave the pistols to someone in the house, "and ran right back to the car." Harris then told appellant to drive to a house on Fordham, and along the way appellant stopped and picked up Saliah, a female friend. At the Fordham house, Harris told appellant to get the basket out of the car, and he gave appellant a Crown Royal sack that contained marijuana, pills, and some "wet." Appellant did not know whether the sack was from the robbery, but he feared that if he refused it Harris would suspect he might contact the police. Appellant bought some crack and then checked into a motel with Saliah. Intending to sell some of the drugs back to Harris for money, appellant later drove back to the house on Fordham. When appellant and Saliah pulled into the driveway, Harris was walking out of the house to meet a car that had pulled in behind appellant. Harris got into the rear seat of the car and appeared to make hand gestures that suggested to appellant that he might be talking about killing appellant. Harris exited the car and called for appellant to get out of his car. Harris told appellant that "something" was "fucked up" because "somebody lived," and the police were looking for Harris. Harris asked to borrow appellant's car because he needed to "move around." Harris gave appellant and Saliah $20 and took them back to their motel room. Appellant did not see Harris again until they were jailed for the instant offense. Appellant insisted that, from the moment at the apartment where he turned around and saw Harris holding two firearms, he did nothing of his own volition. Appellant argued that he did only what he was told to do, and that he did not do it willingly. He denied that it was a planned robbery that went bad, and stated that he was also a victim. Appellant also denied having a loaded firearm or pointing a firearm at anyone on the night of the offense, and he denied pulling a trigger and shooting a gun during the offense. Appellant contended that he participated in the offense only because Harris was holding a gun, and because he feared being shot. Discussion Affirmative Defense In his first issue, appellant argues that the jury's rejection of his affirmative defense of duress should be reversed because the result is so against the great weight and preponderance of the evidence as to be manifestly unjust. When an appellant seeks review of a jury's failure to make a finding on which he had the burden of proof at trial by a preponderance of the evidence, such as an affirmative defense, "the correct standard of review is whether after considering all the evidence relevant to the issue at hand, the judgment is so against the great weight and preponderance of the evidence so as to be manifestly unjust." Ex parte Schuessler, 846 S.W.2d 850, 852 (Tex. Crim. App. 1993) (emphasis omitted) (quoting Meraz v. State, 785 S.W.2d 146, 155 (Tex. Crim. App. 1990)). The jury determines the credibility of the witnesses and the weight of the evidence. Bigby v. State, 892 S.W.2d 864, 878 (Tex. Crim. App. 1994). The court of criminal appeals' recent decision in Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.), overruled Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), and concluded the Jackson v. Virginia standard is the only standard a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. The court, however, did not overrule Meraz. Justice Cochran's concurring opinion in Brooks noted that the factual sufficiency standard announced in Meraz is still appropriate for reviewing issues, such as affirmative defenses, on which the defendant had the burden of proof by a preponderance of the evidence:
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What this Court did in Clewis was adopt the language of Texas civil factual sufficiency review without first determining whether there was a proper fit between those civil standards of review and the differing evidentiary standards of proof in civil and criminal cases. This mistake was quite understandable when Clewis was decided in 1996 because this Court had recently and properly adopted the Texas civil standards of legal and factual sufficiency for those few instances in criminal cases in which the burden of proof is a preponderance of the evidence, as occurs with affirmative defenses. Brooks, 323 S.W.3d at 924 (Cochran, J., concurring). We therefore conclude Meraz is still good law, and we apply that standard to this case. The trial court instructed the jury on appellant's affirmative defense of duress. Under the duress statute, it is an affirmative defense to prosecution that the actor engaged in the proscribed conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another. See Tex. Penal Code Ann.

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