No.06-14-00194-CR 

IN THE SIXTH COURT OF APPEALS 

at TEXARKANA, TEXAS 

BENNIE JOHNSON, JR. 

Appellant 

vs. 

THE STATE OF TEXAS 

Appellee 

Appeal from the District Court of Bowie County, Texas 

102nd Judicial District 

BRIEF IN SUPPORT OF APPELLANT'S COUNSEL'S 

MOTION TO WITHDRAW (ANDERS BRIEF) 

Derric S. McFarland 

816 Pine Street 

Post Office Box 1048 

Texarkana, Texas 75504-1048 

Telephone: (903) 798-3547 

Telecopier: (888) 840-0138 

Attorney for Appellant 

Bennie Johnson, Jr. 

ACCEPTED

06-14-00194-CR

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

4/16/2015 8:54:14 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 4/17/2015 8:46:00 AM DEBBIE AUTREY Clerk
INDENTITY OF PARTIES AND COUNSEL 

Pursuant to Texas Rule of Appellate Procedure 38.1(a), the following list is 

a complete list of all parties to the trial court's judgment and the names and 

addresses of all trial and appellate counsel: 

(1) Plaintiff, Appellee 

State of Texas 

(2)Defendant, Appellant 

Bennie Johnson, Jr. 

(3) Defendant's trial counsel 

Mr. John Stroud 

515 Main Street 

Texarkana, Texas 75501 

( 4) Appellant's appellate counsel 

Mr. Derric S. McFarland 

816 Pine Street 

P.O. Box 1048 

Texarkana, Texas 75501 

(5) State's trial and appellate counsel 

Mr. Jerry Rochelle 

Bowie County District Attorney's Office 

601 Main Street 

Texarkana, Texas 75501 

1

1 
TABLE OF CONTENTS 

Identity of Parties and Counsel. ..................................................................................ii 

Table of Contents ........................................................................................................iii 

Index of Authorities ...................................................................................................iv 

Statement of the Case ................................................................................................ 1 

Issues Presented .......................................................................................................... 2 

Statement of Facts .......................................................................................................2 

Summary of the Argument ........................................................................................2 

Argument ................................................................................................................... 2 

ISSUE ONE: A defendant is entitled to effective assistance of counsel at 

trial. Was Bennie Johnson, Jr. provided effective assistance 

of 

counsel? ........................................................................................3 

ISSUE TWO: An extraneous offense may be excluded if its relevance is 

substantially outweighed by the danger of unfair prejudice. 

Were extraneous offenses properly admitted by the trial 

court? ............................................................................................5 

Prayer ......................................................................................................................... 7 

Certificate of Service .................................................................................................8 

Appendix 

A. Notice informing Bennie Johnson, Jr. of his right to respond to Motion to 

Withdraw as Counsel within thirty days ....................................................9 

111 
INDEX OF AUTHORITIES 

CASES: 

Corley v. State, 

987 S.W.2d 615 (Tex.App.-Austin 1999, no pet.) 

Currie v. State, 

516 S.W.2d 684 (Tex. Crim. App. 1974) 

Hernandez v. State, 

726 S.W.2d 53 (Tex. Crim. App. 1986) 

High v. State, 

573 S.W.2d 807 (Tex. Crim. App. 1978) 

Jackson v. State, 

877 S.W.2d 768 (Tex. Crim. App. 1994) 

PAGE 

................... 6 

.................. 3 

................... 4 

.................. 3 

.................. 4 

Johnson v. State, 

691 S.W.2d 619 (Tex. Crim. App. 1984) cert. denied, 474 U.S. 865, 88 

L.Ed. 2d 152, 106 S.Ct 184 (1985) ..................................................................... .4 

Johnson v. State, 

932 S.W.2d 296 (Tex.App-Austin 1996, pet. ref'd) 

Montgomery v. State, 

810 S.W.2d 372 (Tex. Crim. App. 1991) 

Moreno v. State, 

858 S.W.2d 453 (Tex.Crim.App. 1993) 

Moore v. State, 

694 S.W.2d 528 (Tex. Crim. App. 1985) 

................... 6 

.................... 5 

................... 6 

.................. 4 

Randle v. State, 

760 S.W.2d 30 (Tex. App.-Houston [1 st. Dist.] 1988, no pet.) ............................ 3 

IV 
Strickland v. Washington, 

466 U.S. 668, 80 L. Ed. 2d 674, 104 S.Ct. 2052 (1984) ............................... .4 

Wilson v. State, 

955 S.W.2d 693 (Tex. App.-Waco 1997, order), disp. on merits, 

3 S.W.3d 223 (Tex. App.-Waco 1999, pet. ref'd) ........................................... 2 

RULES 

Texas Rules of Evidence 404(b) 

Texas Rules of Evidence 403 

STATUTES 

Texas Penal Code section 22.021 

v 

................... 5 

................... 6 

................... 1 
STATEMENT OF THE CASE 

This is an appeal from a conviction for Aggravated Sexual Assault in 

violation of Texas Penal Code section 22.021, a first degree felony, in trial court 

number 12F0821-102 and appeal number 06-14-00194-CR. (C.R. 06-14-00194-CR 

pg. 78). A jury found Johnson guilty and assessed a punishment of life. (C.R. 06-

14-00 194-CR pg. 78). 

ISSUES PRESENTED 

A defendant is entitled to effective assistance of counsel at trial. 

Was Johnson provided effective assistance of counsel? 

An extraneous offense may be excluded if its relevance IS 

substantially outweighed by the danger of unfair 

prejudice. 

Were extraneous offenses properly admitted by the trial 

court? 

STATEMENT OF FACTS 

Bennie Johnson, Jr. was arrested for Aggravated Sexual Assault. (C.R. 06-

14-00194-CR pgs. 18 and 19; and R.R. Vol. II pg. 4 et seq.). Johnson entered a 

plea of not guilty to the charge and submitted his case to the court. (R.R. Vol. II 

pg. 4 and R.R. Vol. VIII pg. 10). After a jury trial, Johnson was convicted on the 

charge. (C.R. 06-14-00194-CR pg. 78). Upon the conclusion of the punishment 

trial, Johnson was then sentenced to life in the Texas Department of Criminal 

ISSUE ONE: 

ISSUE TWO: 
1 
Justice-Institutional Division. (C.R. 06-14-00194-CR pg. 78). 

SUMMARY OF THE ARGUMENT 

Appellate counsel can locate no arguable grounds for appeal. Therefore, 

pursuant to Anders v. California, counsel reviews two possible points of error. 

However, each appears groundless. 

Bennie Johnson, Jr. was represented by counsel at the trial. Counsel took an 

active part and appears to have provided effective assistance of counsel. 

Extraneous offenses were allowed to be introduced to the jury during the 

guilt/innocence phase of the trial. It appears that the extraneous offenses were 

properly admitted as rebuttal upon Johnson proffering a defensive theory that the 

complainant had engaged in consensual sex and subsequently fabricated the charge 

of aggravated sexual assault. 

ARGUMENT 

Appellate counsel can locate no arguable grounds for appeal and, therefore, 

files this Anders briefwith a corresponding Motion To Withdraw with this Court. 

A copy of this brief in support of Appellant's Counsel's Motion to Withdraw 

and the corresponding motion has been forwarded to Bennie Johnson, Jr. Johnson 

has also been advised that he has thirty days to file a pro se response or a motion 

2 
requesting an extension of time in which to file the response pursuant to Wilson v. 

State, 955 S.W.2d 693 (Tex. App.-Waco 1997, order), disp. on merits, 3 S.W.3d 

223 (Tex. App.-Waco 1999, pet. ref'd). See Appendix "A" to Appellant's 

Counsel's Motion to Withdraw. 

Counsel on appeal has thoroughly read and reviewed the entire appellate 

record in search of any arguable grounds of error to raise which would support 

either a reversal of Johnson's conviction or some other relief for Johnson which are 

within the trial court's limited grant of appellate right. After due diligence 

reviewing the appellate record and researching the potential grounds for appeal, 

appellate counsel is unable to fmd any error which he, in good faith, can urge 

warranting a reversal of this conviction or in support of any other form of relief for 

Johnson. Appellate counsel is aware that he has a duty to advance all arguable 

ground of error that would afford Johnson a reversal of his conviction or any other 

relief which are within the trial court's limited grant of appellate right. Regardless, 

pursuant to High v. State, counsel must demonstrate why there are no arguable 

grounds to be advanced. 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); Currie v. 

State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Randle v. State, 760 S.W.2d 30,32 

(Tex. App.-Houston [1st. Dist.] 1988, no pet.). Therefore, Appellant's Counsel 

presents the following issues reviewed: 

3 
ISSUE ONE: A defendant is entitled to effective assistance of counsel at trial. 

Was Bennie Johnson, Jr. provided effective assistance of 

counsel? 

A claim of ineffective assistance of counsel is examined by the standard 

enunciated in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 

2052 (1984), and adopted by the Texas Court of Criminal Appeals in Hernandez v. 

State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). That standard requires the 

appellant to show (1) his counsel's representation fell below an objective standard 

of reasonableness, and (2) a reasonable probability exists that, but for counsel's 

unprofessional errors, a different outcome would have resulted. Jackson v. State, 

877 S.W.2d 768, 771 (Tex. Crim. App. 1994). 

The burden is on the appellant to prove his ineffectiveness claim by a 

preponderance of the evidence. Moore v. State, 694 S.W.2d 528,531 (Tex. Crim. 

App. 1985). The court looks to the totality of the representation to determine 

whether counsel provided effective assistance. Moore v. State, 694 S.W.2d 528, 

531 (Tex. Crim. App. 1985). However, a court strongly presumes counsel's 

competence, but appellant can rebut this presumption by showing his attorney's 

representation was unreasonable under prevailing professional norms. See Jackson 

v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Finally, the appellate 

record must support a claim of ineffective assistance. See Johnson v. State, 691 

4 
S.W.2d 619, 627 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865, 88 L. Ed. 2d 

152, 106 S.Ct. 184 (1985). 

In the case at bar, appointed trial counsel appeared at the trial. (R.R. vol. 

VII, pg. 4). Counsel cross examined the state's witnesses (R.R. vol. VIII pgs. 31, 

50, 66, 84, 99, 119, 133, 136, 159 and R.R. vol IX, pgs. 18, 37) and presented 

defendant to testify and elicited testimony. (R.R. vol. VIII, pg. 171). Additionally 

the trial counsel presented an alternative theory as a defense to the case. (R.R. vol. 

VIII, pgs. 15, 171). Bennie Johnson, Jr.'s trial counsel made opening (R.R. vol. 

VIII, pgs. 15) and closing statements. (R.R. vol. IX, pgs. 61). 

ISSUE TWO: Was it proper for the trial court to admit the extraneous 

offenses? 

Texas Rules of Evidence 404(b) states that evidence of other crimes or 

wrongs by the defendant is not admissible if it is relevant only to prove the 

character of the defendant in order to show that he acted in conformity therewith. 

The issue of whether extraneous offense evidence is admissible was considered by 

the Texas Court of Criminal Appeals in Montgomery v. State of Texas. The court 

held that to be admissible, extraneous offense evidence must be relevant apart from 

indicating mere character conformity, that is, it must tend to establish some 

elemental or evidentiary fact or rebut some defensive theory. Montgomery v. State, 

5 
810 S.W.2d 372,386-87 (Tex. Crim. App. 1991); Tex R. Evid. 404(b). Even ifan 

extraneous offense is relevant apart from character conformity, it may still be 

excluded if its relevance is substantially outweighed by the danger of prejudice. 

Montgomery, 810 S.W.2d at 387; Johnson v. State, 932 S.W.2d 296, 303 

(Tex.App-Austin 1996, pet. ref d); Tex. R. Evid. 403. "Questions of relevance 

should be left largely to the trial court, relying on its own observations and 

experience, and will not be reversed absent an abuse of discretion." Moreno v. 

State, 858 S.W.2d 453, 463 (Tex.Crim.App. 1993); Corley v. State, 987 S.W.2d 

615,618 (Tex.App.-Austin 1999, no pet.). 

In the case at bar, the State called two witnesses who testified to 

similar fact situations with appellant (R.R. vol. IX, pgs. 8, 30). Both occurrences 

detailed how the appellant offered to give the witnesses a ride but then made up an 

excuse to deviate from the route (R.R. vol. IX, pgs. 8, 25, 30, 39). They each went 

on to state that the appellant sexually assaulted them in a dark, remote location 

before driving off without them (R.R. vol. IX, pgs. 8,25, 30, 39). The witnesses' 

personal lives were also of a similar nature. Each described having a drug 

addiction and experiencing the same socioeconomic troubles which led the State to 

theorize that appellant targeted certain females that might be less likely to report 

their victimization (R.R. vol. VIII, pgs. 182, 184). 

6 
PRAYER 

WHEREFORE, premises considered, appellate counsel respectfully requests 

that Appellant's Counsel's Motion to Withdraw as Counsel be granted. 

Respectfully submitted, 

/s/ Derric S. McFarland 

By: ____________________________ _ 

Derric S. McFarland 

Texas Bar No. 24048646 

816 Pine Street 

P.O. Box 1048 

Texarkana, Texas 75504-1048 

Telephone: 903-798-3547 

Facsimile: 888-840-0138 

ATTORNEYS FOR APPELLANT 

BENNIE JOHNSON, JR. 

CERTIFICATE OF COMPLIANCE 

Pursuant to the Tex. R. App. P. 9.4, I hereby certify that this brief 

contains 1,336 words (excluding the caption, table of contents, table of 

authorities, signature, proof of service, certification and certificate of 

compliance). This is a computer-generated document created in Microsoft 

Word, using 14 point typeface for all text. In making this certificate of 

compliance, I am relying on the word count provided by the software used 

to prepare the document. 

/s/ Derric S. McFarland 

By: 

Derric S. McFarland 

7 
Texas Bar No. 24048646 

816 Pine Street 

P.O. Box 1048 

Texarkana, Texas 75504-1048 

Telephone: 903-798-3547 

Facsimile: 888-840-0138 

ATTORNEYS FOR APPELLANT 

BENNIE JOHNSON, JR. 

CERTIFICATE OF SERVICE 

This is to certify that a true and correct copy of the foregoing Brief in Support of 

Appellant's Counsel's Motion to Withdraw (Anders Brief) has this 14 day of April, 

2015, been forwarded by the United States Postal Service to the following: 

Appellant 

Mr. Bennie Johnson, Jr. 

SID # 08641019 

Stiles Unit 

3060 FM 3514 

Beaumont, TX 77705 

Trial Court Judge 

Hon. Bobby Lockhart 

710 James Bowie Drive 

New Boston, Texas 75570 

State's Attorney 

Ms. Kelley Crisp 

Bowie County District Attorney 

601 Main Street 

Texarkana, Texas 75501 

/s/ Derric S. McFarland 

Derric S. McFarland 

8 
APPENDIX 

A. 

Notice Informing Bennie Johnson, Jr. of his right to respond to 

"Motion to Withdraw as counsel" within thirty days. 

9 
McFARLAND LAW OFFICE 

DERRIC s. MCFARLAND 

ATTORNEY AND COUNSELOR AT LAw 

8 1 6 PINE STREET 

P.O. Box 1048 

TEXARKANA, TEXAS 75504 

Mr. Bennie Johnson, Jr. 

TDCJ-ID# 01970053 

Stiles Unit 

3060 FM 3514 

Beaumont, TX 77705 

April 14,2015 

TELEPHONE: 903-798-3547 

FACSIMILE: 1 -888-840-0 1 38 

McF ARLAND.ATTY@GMAIL.COM 

Re: State of Texas vs. Bennie Johnson, Jr.; Trial Court Cause No. 

12F0821-102 - 102nd District Court of Bowie County, Texas; 

Appellate Cause No. 06-14-00194-CR 

Dear Mr. Johnson: 

As you are aware, I was appointed by Judge Bobby Lockhart on or about 

October 17,2015, to represent you in the above referenced appeal. 

I have thoroughly read and reviewed the Clerk's Record and Reporter's 

Record in Appeal One in search of any arguable grounds of error to raise which 

would support either a reversal of your conviction or some other relief for you. 

After due diligence of the appellate record and researching the potential grounds 

for your appeal, I am unable to find any error which I, in good faith, can urge 

warranting a reversal of this conviction or in support of any other form of relief for 

you. Therefore, pursuant to Anders v. California, 386 U.S. 738 (1967), I filed 

Appellant's Counsel's Motion to Withdraw and a Brief in Support of Appellant's 

Counsel's Motion to Withdraw (Anders Brief) asking the Sixth District Court of 

Appeals to permit me to withdraw from my representation of you. Please find a 

copy of this motion and brief enclosed. 
Pursuant to Wilson v. State, I must advise you that you have thirty days 

from the date the enclosed motion and brief are filed with the Sixth District 

Court of Appeals to file a pro se response or a motion requesting an extension 

of time in which to file a response with the Court of Appeals. Wilson v. State, 

955 S.W.2d 693 (Tex. App.-Waco 1997, order), disp. On merits, 3 S.W.3d 223 

(Tex. App.-Waco 1999, pet. ref d). Please also find enclosed the entire reporter's 

and clerk's records in order that you may prepare your own brief. 

I am sorry that I was unable to locate any arguable points of error to present 

to the Sixth District Court of Appeals on your behalf with regard to this appeal. If 

I can answer any questions, please contact me. 

Sincerely, 

/s/ Derric S. McFarland 

DSM 

Enclosures