1

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-14-00365-CR

NO. 09-14-00366-CR

____________________

JERRY LEE MYERS JR., Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________________

On Appeal from the 128th District Court

Orange County, Texas

Trial Cause Nos. A-130725-R & A-090038-R

________________________________________________________________________

MEMORANDUM OPINION 

In Cause No. A-090038-R, Appellant Jerry Lee Myers Jr. (Myers) was 

indicted for and pleaded guilty on August 14, 2009, to aggravated assault. Myers 

was placed on deferred adjudication community supervision for eight years, 

assessed a $2,000 fine, and ordered to pay $1,795.51 in restitution. In November of 

2013, while Myers was serving his community supervision for the earlier assault,
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Myers was indicted for the aggravated assault of A.W.1, an adult male, in Cause 

No. A-130725-R. The State also filed a Motion to Impose Guilt in Cause No. A090038-R.

In Cause No. A-130725-R, Myers waived his right to a jury trial, and he 

pleaded “not guilty” to the offense. Following a bench trial, the trial court found 

Myers guilty of aggravated assault in Cause No. A-130725-R. The trial court also 

found Myers guilty in Cause No. A-090038-R and revoked his probation. The trial 

court sentenced Myers to seven years of confinement in each case, with the 

sentences to run concurrently.

In appealing both convictions, Myers contends in a single issue that he 

received ineffective assistance of counsel because his counsel did not object to (1) 

admission of evidence of statements by a non-testifying witness identifying Myers 

as the perpetrator and (2) testimony by police officers regarding what caused the 

victim’s injuries and whether the injuries were caused by a deadly weapon. We 

overrule his issue and affirm.

FACTUAL BACKGROUND

Officer Troy Tyson with the City of Orange Police Department testified that 

he was on patrol on the morning of September 1, 2013, when he received a call 

 1

We refer to the victim by his initials.
3

from dispatch about an assault that occurred at a store in Orange County, Texas.

According to Officer Tyson, when he arrived at the store he observed the alleged 

victim, A. W., sitting on the curb in front of the store. A.W. had a laceration to his 

head. Officer Tyson testified that the laceration was “probably about 10 inches 

long and about an inch deep[.]” Officer Tyson testified that A.W. described the 

assailant as someone he knew as “Smiley.” A.W. told the officer that the assailant 

left the scene in a white Avalanche. The patrol video of Officer Tyson’s interview 

with A.W. was introduced into evidence. A.W. did not testify at the trial.

Officer Tyson obtained a statement from the store clerk who witnessed the 

assault and who knew both the victim and assailant, and a statement from A.W. No 

other witnesses were at the store when Officer Tyson arrived. According to Officer 

Tyson, the store clerk reported that Myers used a knife in the assault. In Officer 

Tyson’s opinion, the manner of use or intended use of the knife by Myers was 

capable of causing death or serious bodily injury, and A.W. suffered bodily injury 

as a result of being stabbed in the head with the knife. 

Detective Sergeant Jason Ashworth with the City of Orange Police 

Department testified that he conducted an investigation of the assault of A.W.

Ashworth obtained and reviewed the surveillance video from the store. The 

surveillance video was played at trial. Ashworth explained that over approximately 
4

a three week period he gave Myers an opportunity to give a statement, but Myers 

did not give a statement. Ashworth reviewed the video surveillance and testified 

that the video depicts A.W. pulling up to the store and being attacked even though 

“it seemed like there was no provocation for it.” Sergeant Ashworth testified that, 

based on his review of the surveillance video, it appeared that the attacker made a 

motion that was consistent with the use of a knife, that it appeared to be a knowing 

and intentional act, and that the instrument used was, in the manner of its use and 

intended use, capable of causing death or serious bodily injury. Ashworth 

explained at trial that although A.W. stated on the surveillance video that Myers 

had cut him with a knife, A.W. never told Ashworth that Myers had a knife. 

Ashworth agreed at trial that in A.W.’s statement A.W. stated that he did not see 

the weapon, and A.W. also stated that it had to have been a very sharp object. 

The store clerk that witnessed the incident testified at trial. The clerk 

testified that she knows Myers and A.W. Myers is known by the name of “Smiley” 

and A.W. is known as “Tony.” She testified that she knew both of them because 

they periodically would come into the store. She explained that at the time of the 

incident she was the only clerk working and that Myers had been in and out of the 

store several times that night. When the incident occurred, the clerk was holding 

the front door of the store open and smoking a cigarette. She testified that she was 
5

“pretty close” to the incident and that “Smiley” was sitting in a truck with his 

girlfriend and another female when A.W. pulled up in his car with “possibly one or 

two other people.” According to the clerk, there was no conversation between the 

men before “Smiley” got out of the truck and came around A.W.’s car. The clerk 

explained that, before A.W. could get out of A.W.’s car, “Smiley” had “cut 

[A.W.’s] head open” with something “sharp” and “silver-looking” that “looked 

like a knife.” She handed the phone to her son and told him to call 9-1-1. The clerk 

testified that, based upon what she could see, A.W. did not do anything to provoke 

Myers. 

Myers testified that on the evening of the incident he was driving around in 

his vehicle and he had another male, a female that was his fiancée at the time, and 

another female in the car. Myers explained at trial that on the day before the 

incident, his fiancée at the time who had “a [drug] problem with 

Methamphetamines and . . . pills [and] stuff” had returned home after being gone 

three days. According to Myers, his fiancée had been “over-drugged” and she told 

him that five people had raped her, and it looked to Myers “like she had been 

violated.” Myers testified that prior to the incident A.W. and the others in his car 

had threatened him and that he went to the convenience store because he knew that 

the store would have surveillance and he wanted protection “from being jumped by 
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three people that just got through threatening [his] life and the life of [his] loved 

ones[.]” He left the store and came back “a couple of times.” He then brought his 

fiancée and two other people with him to the store. 

According to Myers, he and his fiancée had just gotten out of their truck to 

go into the store when A.W. and the other males pulled up in a car. Myers testified 

that he thought that A.W. was armed, and that A.W. believed that Myers and 

Myers’s fiancée were “snitches,” because Myers had given law enforcement 

information regarding meth dealers and because Myers had testified against 

someone in a prior theft case. Myers explained that he had been at odds with gangs 

for a year or two. Myers testified that one of the males in A.W.’s vehicle made a 

“humping motion” towards Myers’s fiancée and then the males laughed.

According to Myers, he saw a baseball bat in the front seat of A.W.’s car. Myers 

testified that he went to the front of the car, yelled at A.W. and the others, and hit 

the hood of the car, trying to scare them away. According to Myers, when A.W.

opened the door, Myers tried to keep A.W. “inside that door,” and then A.W.

“overpowered” Myers and A.W. got out. Myers testified that A.W. and the men in 

A.W.’s car “were about to get [Myers] pin up” where he could not defend himself, 

his fiancée, or the other female with him. According to Myers, when A.W. came 

toward him, Myers swung at him, and a novelty screwdriver that was part of 
7

Myers’s keychain caught A.W. Myers claimed he did not mean to cut A.W. Myers 

then yelled to his fiancée to get in the truck, and they left in the truck as quickly as 

possible. According to Myers, he believed that A.W. had learned from the other 

man that had left with Myers’s cousin that Myers was at the store, and A.W. and 

the other men with A.W. had come to the store to hurt or kill Myers because of 

past confrontations and because Myers knew they were after his fiancée. Myers 

testified that he dropped the other female off and he and his fiancée hid for three 

days at another location. According to Myers, eleven men were watching them.

Myers admitted that although he had his cell phone for the three days after the 

incident, he never called the police. Myers testified that he did not give a statement 

because he had been advised not to make a statement at all. Myers admitted to 

being on probation at the time of the incident. Myers explained that the video 

shows that after the altercation, but prior to the officers’ arrival, A.W. and the two 

men with A.W. unloaded items out of their car and then the two men drove off and 

left A.W. at the store. According to Myers, A.W. did not tell the officers about the

two men with A.W.

AGGRAVATED ASSAULT

A person commits assault if he intentionally, knowingly, or recklessly 

causes bodily injury to another; or he intentionally or knowingly threatens another 
8

with imminent bodily injury; or he intentionally or knowingly causes physical 

contact with another when the person knows or reasonably should believe that the 

other will regard the contact as offensive or provocative. Tex. Penal Code Ann.

§ 22.01 (West Supp. 2014).2 Assault becomes aggravated assault if the person 

committing assault causes serious bodily injury or uses or exhibits a deadly 

weapon during the commission of the assault. Tex. Penal Code Ann. § 22.02(a)

(West 2011). “Serious bodily injury” is defined as “bodily injury that creates a 

substantial risk of death or that causes death, serious permanent disfigurement, or 

protracted loss or impairment of the function of any bodily member or organ.” Tex. 

Penal Code Ann. § 1.07(a)(46) (West Supp. 2014); Tucker v. State, 274 S.W.3d 

688, 691 (Tex. Crim. App. 2008). The Penal Code does not require that the actor 

actually intend death or serious bodily injury. McCain v. State, 22 S.W.3d 497, 503 

(Tex. Crim. App. 2000). An object is a deadly weapon if the actor intends a use of 

the object in which it would be capable of causing serious bodily injury. Id.

STANDARD OF REVIEW

“The benchmark for judging any claim of ineffectiveness must be whether 

counsel’s conduct so undermined the proper functioning of the adversarial process 

that the trial cannot be relied on as having produced a just result.” Strickland v. 

 2

We cite to the current version of the statute as the subsequent amendments 

do not affect the outcome of this appeal. 
9

Washington, 466 U.S. 668, 686 (1984). To prevail on an ineffective assistance 

claim, Myers must establish that (1) trial counsel’s representation fell below the 

objective standard of reasonableness, based on prevailing professional norms, and 

(2) there is a reasonable probability that the result of the proceeding would have 

been different but for counsel’s deficient performance. Id. at 687-88, 694; Perez v. 

State, 310 S.W.3d 890, 892-93 (Tex. Crim. App. 2010); Hernandez v. State, 726 

S.W.2d 53, 55-57 (Tex. Crim. App. 1986) (holding Strickland standard applied to 

ineffective assistance claims under the Texas Constitution). An appellant bears the 

burden of proving by a preponderance of the evidence that his counsel was 

ineffective. See Perez, 310 S.W.3d at 893; Robertson v. State, 187 S.W.3d 475, 

483 (Tex. Crim. App. 2006); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. 

App. 1999). 

When determining the validity of a defendant’s claim of ineffective 

assistance of counsel, our judicial review must “be highly deferential to trial 

counsel and avoid the deleterious effects of hindsight.” Thompson, 9 S.W.3d at 813 

(citing Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984)). There is a 

strong presumption that counsel’s conduct fell within the wide range of reasonable 

professional assistance and that counsel was motivated by sound trial strategy. 

Strickland, 466 U.S. at 689; Ex parte White, 160 S.W.3d 46, 51 (Tex. Crim. App. 
10

2004); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000); Chambers v. 

State, 903 S.W.2d 21, 32-33 (Tex. Crim. App. 1995); Jackson v. State, 877 S.W.2d 

768, 771 (Tex. Crim. App. 1994). Therefore, “the defendant must overcome the 

presumption that, under the circumstances, the challenged action ‘might be 

considered sound trial strategy.’” Strickland, 466 U.S. at 689 (quoting Michel v. 

Louisiana, 350 U.S. 91, 101 (1955)); Tong, 25 S.W.3d at 712. To overcome the 

presumption of reasonable professional assistance, “[a]ny allegation of 

ineffectiveness must be firmly founded in the record, and the record must 

affirmatively demonstrate the alleged ineffectiveness.” Thompson, 9 S.W.3d at 814 

(quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)); see 

also Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). The 

appropriate context is the totality of the representation; counsel is not to be judged 

on isolated portions of his representation. See Thompson, 9 S.W.3d at 813; Solis v. 

State, 792 S.W.2d 95, 98 (Tex. Crim. App. 1990). 

Direct appeal is usually an inadequate vehicle for raising a claim of 

ineffective assistance of counsel because the record is generally undeveloped. 

Goodspeed, 187 S.W.3d at 392 (citing Thompson, 9 S.W.3d at 813-14); Bone v. 

State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) (“Under normal circumstances,

the record on direct appeal will not be sufficient to show that counsel’s 
11

representation was so deficient and so lacking in tactical or strategic 

decisionmaking as to overcome the presumption that counsel’s conduct was 

reasonable and professional.”). “The reasonableness of counsel’s choices often 

involves facts that do not appear in the appellate record.” Mitchell v. State, 68 

S.W.3d 640, 642 (Tex. Crim. App. 2002). A petition for writ of habeas corpus 

usually is the more appropriate method for a defendant to raise a claim of 

ineffective assistance of counsel. Id. Where the record is silent as to counsel’s 

motivations, a reviewing court will not speculate thereon. See Stults v. State, 23 

S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d); Gamble v.

State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). When the 

record is silent as to the motivation of counsel, we will not find ineffective 

assistance of counsel unless counsel’s conduct was “‘so outrageous that no 

competent attorney would have engaged in it.’” Goodspeed, 187 S.W.3d at 392 

(quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

The right to effective assistance of counsel ensures the right to “reasonably 

effective assistance[,]” and it does not require that counsel must be perfect or the 

representation must be errorless. See Ingham, 679 S.W.2d at 509. Isolated failures 

to object to improper evidence or argument ordinarily do not constitute ineffective 

assistance of counsel. See id.; Ewing v. State, 549 S.W.2d 392, 395 (Tex. Crim.
12

App. 1977). In order to meet his burden regarding his claim that his counsel was 

ineffective for failing to object to evidence, the appellant must also establish that 

the trial court would have committed error in overruling such objection had an 

objection been made. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 

1996).

COUNSEL’S ALLEGED DEFICIENCIES

In his sole issue on appeal, Myers complains that he received ineffective 

assistance of counsel because his counsel did not object to (1) evidence of 

statements by a non-testifying witness identifying Myers as the perpetrator and (2) 

testimony by police officers regarding what caused the victim’s injuries and 

whether the injuries were caused by a deadly weapon. 

Officer Tyson and Sergeant Ashworth testified that A.W. identified Myers 

as his attacker, and a video recording of Officer Tyson’s interview in which A.W.

identified Myers as his attacker was admitted into evidence. On appeal, Myers 

argues that his trial counsel was ineffective because the attorney did not object to 

the testimony from the Officer about what the victim told the officers at the scene, 

and because the attorney failed to object to the video of the interview of A.W.

which was admitted at trial wherein A.W. identified Myers as the attacker. Myers 

asserts that “[a] reasonably prudent attorney would have objected to all of the times 
13

that the State introduced testimony of Anthony [A.W.]” because A.W. did not 

testify and those statements constituted hearsay, and that “[c]ounsel was not 

prepared to object to all of the evidence presented with respect to the witness that 

was not presented at trial.”3 Myers also complains that his counsel was ineffective 

because he “allowed police officers to speculate on what caused the injuries to 

[A.W.] and whether the injuries had to be caused by a deadly weapon.” Myers 

contends that the testifying police officers were not qualified to give their opinions 

on those matters and that counsel’s failure to object to the speculation “led to 

harmful error and was such deficient performance as to meet the first prong set 

forth in Strickland.” 

Officer Tyson opined that the manner of use or intended use of the 

instrument used by Myers to injure A.W. was capable of causing death or serious 

bodily injury and that A.W. suffered bodily injury as a result of being stabbed on 

the head. Sergeant Ashworth testified that, based on his review of the surveillance 

video and more than twenty years’ experience in law enforcement, it appeared to 

him that the attacker made a motion that was consistent with the use of a knife, that 

 3

Myers states in one sentence in his brief on appeal that Myers had “no 

chance to confront his accuser.” We note that Myers does not brief any error under 

the Confrontation Clause, nor does he cite any authority to support such a claim.

Accordingly, any such argument has not been properly briefed or presented on 

appeal. See Tex. R. App. P. 38.1(i).
14

it appeared to be a knowing and intentional act, and that the instrument used, both 

in the manner of its use and intended use, was capable of causing death or serious 

bodily injury. The store clerk testified that Myers “cut [A.W.’s] head open” with 

something “sharp” and “silver-looking” that “looked like a knife.” Furthermore, 

although A.W. did not testify regarding his injuries, photographs depicting his 

injuries were admitted into evidence and the photographs appear to depict a cut on 

A.W.’s head.

ANALYSIS

The record in the case at bar is silent as to why Myers’s trial counsel may 

have chosen not to object to the video or why he chose not to make a hearsay 

objection to the particular evidence at trial. Where, as here, the record is silent as to 

the underlying reasons for counsel’s strategy or conduct, we will not speculate 

about them. See Bone, 77 S.W.3d at 835 (“Ineffective assistance of counsel claims 

are not built on retrospective speculation[.]”); see also Ex parte Varelas, 45 

S.W.3d 627, 632 (Tex. Crim. App. 2001) (“[T]he bare record does not reveal the 

nuances of trial strategy.”). However, employing the “strong presumption that 

counsel’s conduct [fell] within the wide range of reasonable professional 

assistance[,]” we cannot say that the failure to object to such evidence and 

testimony was unsound trial strategy. Strickland, 466 U.S. at 689; Ex parte White, 
15

160 S.W.3d at 51; Tong, 25 S.W.3d at 712. We decline to speculate about 

counsel’s strategy or reasoning. The appellate record provides no basis for us to 

conclude that trial counsel’s strategy was unreasonable based on prevailing 

professional norms.

In order for Myers to meet his burden regarding his claim that his counsel 

was ineffective for failing to object to the evidence, Myers must establish that the 

trial court would have committed error in overruling such objection had an 

objection been made. See Vaughn, 931 S.W.2d at 566. After the State concluded its 

case in chief, and in making the defense motion for a finding of not guilty due to 

insufficient evidence and the inability to cross-examine A.W., defense counsel 

argued that “the State’s evidence mostly relied upon officers who were not there 

and two videos” that constitute “all kinds of hearsay[.]” The trial court denied 

defense counsel’s motion. Assuming without deciding that defense counsel made a 

timely hearsay objection to the testimony of the two police officers and the video, 

it would not have been an abuse of discretion for the trial court to overrule the 

hearsay objection because A.W.’s statements are within an exception to the 

hearsay rule as a present sense impression, and the identification of Myers as the 

assailant would otherwise be cumulative of the eyewitness testimony of the store 

clerk who identified Myers as the assailant. See Tex. R. Evid. 803(1). Under the 
16

present sense impression exception to the hearsay rule, a statement describing or 

explaining an event or condition made while the declarant was perceiving the event 

or condition, or immediately thereafter, is not excluded as hearsay. Tex. R. Evid. 

803(1); Rabbani v. State, 847 S.W.2d 555, 560 (Tex. Crim. App. 1992). Failure to 

object to admissible evidence does not constitute ineffective assistance of counsel. 

McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992), overruled on 

other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994).

Additionally, the failure to object to otherwise cumulative evidence will not 

support a claim of ineffective assistance of counsel. Darby v. State, 922 S.W.2d 

614, 624 (Tex. App.—Fort Worth 1996, pet. ref’d); Marlow v. State, 886 S.W.2d 

314, 318 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d).

On the record before us, Myers has not established that his counsel’s 

representation fell below an objective standard of reasonableness. Jackson, 877 

S.W.2d at 771; Hernandez, 726 S.W.2d at 55. We lack any basis in the record 

before us to conclude that the alleged failure of his defense counsel to object to the 

testimony and evidence in question was “so outrageous that no competent attorney 

would have engaged in it.” Goodspeed, 187 S.W.3d at 392. Myers has failed to 

establish the first Strickland prong, i.e., that trial counsel’s representation fell 

below the objective standard of reasonableness based on prevailing professional 
17

norms. See Strickland, 466 U.S. at 700 (“Failure to make the required showing of 

. . . deficient performance . . . defeats the ineffectiveness claim.”); see also Estrada 

v. State, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010) (deciding the record was 

insufficient to address ineffective assistance of counsel claims where it did not 

sufficiently show that counsel’s representation was deficient as to tactical and 

strategic decisionmaking).

When a defendant fails to satisfy one prong of the Strickland test, a court 

need not consider the other prong. Garcia, 57 S.W.3d at 440 (citing Strickland, 

446 U.S. at 697). Nonetheless, we also conclude that Myers has failed to establish 

that there is a reasonable probability that the result of the proceeding would have 

been different but for counsel’s alleged deficient performance. Even if we accept 

Myers’s contention that defense counsel should have lodged additional hearsay 

objections to the video or that his attorney should have objected to the officer’s 

testimony about the cut or use of a knife or “deadly weapon,” the record does not 

support Myers’s assertion that there is a reasonable probability that, but for his 

attorney’s deficiency, the result of the trial would have been different. See 

Strickland, 466 U.S. at 689. The store clerk testified that she knew both A.W. and 

Myers by their nicknames, that she witnessed the incident, that a male she knew as 

“Smiley” was the assailant who attacked A.W., that it appeared to her that A.W.
18

did not provoke “Smiley,” and she identified Myers at trial as the man she knew as 

“Smiley” and as the person who attacked A.W. Myers admitted at trial that he 

attacked A.W. The complained-of evidence concerns statements by A.W.

identifying Myers as his assailant that are merely cumulative of other admissible 

evidence. Therefore, trial counsel’s failure to object to the admission of the 

complained-of evidence, regardless of whether it was hearsay, does not render 

counsel’s performance below an objective standard of reasonableness. 

With respect to the testimony about the instrument Myers used to inflict the 

injury to A.W., expert testimony is not required to show an instrument can be used 

as a deadly weapon. Denham v. State, 574 S.W.2d 129, 131 (Tex. Crim. App. 

1978). Wounds inflicted upon a victim are a factor to consider in determining 

whether a weapon qualifies as a deadly weapon. Id. at 130; see also Alvarez v. 

State, 566 S.W.2d 612, 614 (Tex. Crim. App. 1978). The fact finder may determine 

whether an object was a deadly weapon based on lay witness testimony alone. See 

Denham, 574 S.W.2d at 131; Cruz v. State, 576 S.W.2d 841, 842 (Tex. Crim. App. 

1979); Bailey v. State, 46 S.W.3d 487, 492 (Tex. App.—Corpus Christi 2001, pet. 

ref’d); Bui v. State, 964 S.W.2d 335, 345 (Tex. App.—Texarkana 1998, pet. ref’d). 

The State need not prove that the defendant caused or even intended to cause death 

or serious bodily injury in order to justify a deadly weapon finding; rather the State 
19

must only prove that the actual use or intended use of the object was capable of 

causing death or serious bodily injury. See Garcia v. State, 92 S.W.3d 574-76 

(Tex. App.—Austin 2002, no pet.); Brooks v. State, 900 S.W.2d 468, 472 (Tex. 

App.—Texarkana 1995, no pet.).

Myers has failed to establish the first Strickland prong, i.e., that trial

counsel’s representation fell below the objective standard of reasonableness based 

on prevailing professional norms. See Strickland, 466 U.S. at 700; see also 

Estrada, 313 S.W.3d at 311. Furthermore, Myers has failed to demonstrate that, 

but for counsel’s alleged errors, the outcome of his trial would have been different. 

See Bone, 77 S.W.3d at 833; Graves v. State, 310 S.W.3d 924, 929 (Tex. App.—

Beaumont 2010, pet. ref’d). We reject Myers’s ineffective assistance of counsel 

claim, and we overrule his issue.

We affirm the trial court’s judgments.

AFFIRMED.

_________________________

 LEANNE JOHNSON

 Justice

Submitted on May 21, 2015

Opinion Delivered July 29, 2015

Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.