Case Summary - Ivan Johnson v. State

The State charged Ivan Johnson with two counts of indecency with a child. The jury acquitted him of one count involving conduct with a girl named Savannah, but found him guilty of the other count involving conduct with a girl named Brittany. The jury assessed punishment at five years in prison, but recommended probation. The trial court accepted the jury's punishment verdict and imposed the standard conditions of community supervision. After the trial court had completed the oral pronouncement of the sentence, the mothers of the two girls gave statements to the trial court written by the two victims. Brittany's mother read her daughter's statement, while the trial court read Savannah's even though Johnson had been acquitted of molesting her.

Immediately after these "unsworn, un-cross-examined" statements, the trial court imposed additional conditions of probation, namely that Johnson sell his home and that he serve 180 days in county jail. Johnson agreed to sell his home, but objected to the six months in jail. In reaching its decision, the trial court noted that it had sat through the entire trial and had heard everything contained in the victim's statements so he wasn't influenced by the statements.

The court of appeals affirmed in a published opinion. According to the court of appeals, Article 42.03 of the Code of Criminal Procedure is ambiguous as it relates to community supervision even though it specifically requires victim statements to be made after the trial court pronounces the terms of community supervision. Section 12(c) of Article 42.12 allows a trial court to impose jail as a condition of probation at any time during the supervisory period. This, according to the court of appeals, is an exception to Article 42.03 and was at most harmless error. Click here for a link to the court of appeals case information.

The CCA reversed, holding that Article 42.03 is unambiguous and prevents the trial court from imposing jail as a condition of community supervision in this manner. The purpose of this "after" requirement was to prevent the appearance that the victim's statements might affect the judge's decision making. It is only after sentencing is complete and these "unsworn, uncross-examined" statements could not be seen to have had any effect on the judge's decision making. [In case you missed it, these victim statements were not only unsworn, they were also un-cross-examined? That's some good persuasive writing right there.]

The six-judge majority, led by Judge Cochran, also rejected the argument that this error was harmless because the trial court was empowered to amend or modify the conditions of probation at any time during the period of community supervision. First, the judge didn't say he was modifying the sentence. [No, really. That's one of the reasons.] Second, and here's where the majority opinion turns into a Mobius strip, a trial court is not allowed to modify community supervision for a prohibited purpose. Thus, it is of no moment that he's not able to modify the probation for a valid reason if he can't do it for an invalid one.

[Here, the Court draws the analogy to basing peremptory challenges on race, they may have overplayed their hand. They overlook Young v. State where prosecutors considered the race of a prospective juror member but the context of the consideration showed it was not discriminatory. If they were truly taking the trial court at his word that he wasn't considering the statements, shouldn't they have factored that context in as well when conducting their harm analysis? We don't sustain Batson challenges just because it "looks bad", do we? I appreciate that they're trying to be all-Dave Letterman-apology and stuff, but when does it become impossible for someone to draw the conclusion that a judge based his decision to modify probation based on victim statements? Sorry, I meant unsworn, un-cross-examined™ statements. I think there was a little more conflict amongst the statutory provisions than the majority was willing to acknowledge.]

Presiding Judge Keller wrote a dissenting opinion that Judge Hervey joined. Keller noted that the precise language of the statute doesn't require the un-good statements to be read after the terms of community supervision have been announced. Rather, the statute requires the un-good statements to be stated after the decision is made to grant probation and the terms of the sentence have been announced. Moreover, there is no requirement in the statute that requires a new factual basis before the trial court can modify probation, but the majority opinion now appears to require one before modification.

Judge Keasler also dissented along with Presiding Judge Keller and Judge Hervey. According to Keasler's dissent, Article 42.03 is a general statute trumped by the specific provisions that allows modification of community supervision. He also has to work around his own statement in Aguilera v. State, that he could not condone the reduction of a sentence immediately after the reading of a victim's un-good statement. Judge Keasler points out that that statement was in the context of a reduction of a jail sentence done after the reading of the statement rather than the modification of a condition of community supervision immediately after the victim's allocution. Finally, Judge Keasler noted that the statement was read after sentencing because the trial court had orally pronounced it which controls over the written judgment. Click here for a link to the CCA case information.