Unreported / Non-Citable
Background
In March 2020, Michelle Balthrop was walking to a convenience store in Waco when a man in a dark sedan displayed a badge and handcuffs, claimed to be a bounty hunter, and ordered her into the car. He drove her to a secluded industrial area and sexually assaulted her, threatening to kill her when she cried. After releasing her in an unfamiliar area, he told her that if she contacted police, he would claim she was a prostitute.
Investigators identified Larry Lee Johnson, a known local bounty hunter whose vehicle and part of whose license plate matched Balthrop’s description. Johnson also could not be excluded as a contributor to biological evidence collected during Balthrop’s sexual-assault examination. A jury convicted him of sexual assault and aggravated kidnapping and imposed concurrent prison terms of 20 years and 99 years, respectively.
At trial, the State introduced testimony from Monique Brown that Johnson had sexually assaulted her in 2015 after offering her transportation through his ride service. Johnson challenged that evidence on appeal and also argued that the aggravated-kidnapping judgment had to be vacated because it identified the offense as Count III even though the jury had convicted him under Count II.
The Court’s Holding
The Tenth Court of Appeals held that Johnson failed to preserve his Rule 404(b) argument that Brown’s account was too dissimilar from the charged offense to establish identity through modus operandi. At trial, the State offered the evidence to address consent and intent, and Johnson did not object on the identity, modus-operandi, or insufficient-similarity grounds he later raised on appeal.
The court also held that the trial court did not abuse its discretion under Rule 403. Although Brown’s assault occurred ten years before trial, it occurred five years before the charged assault and shared several features with it, including Johnson’s use of his businesses to isolate women lacking transportation, threats during the assaults, and statements suggesting authorities would not believe the victims. The court further concluded that the evidence’s potential for unfair prejudice did not substantially outweigh its probative value. Johnson had not requested a contemporaneous limiting instruction, and the jury charge ultimately included one.
Finally, the court treated the judgment’s reference to Count III as a clerical error rather than grounds to vacate the aggravated-kidnapping conviction. It modified that judgment to identify aggravated kidnapping as Count II, affirmed the sexual-assault judgment, and affirmed the aggravated-kidnapping judgment as modified.
Key Takeaways
- An appellate Rule 404(b) theory is not preserved when the defendant did not present that specific ground to the trial court.
- Remoteness alone does not require exclusion under Rule 403, particularly when the extraneous and charged offenses share probative similarities.
- A defendant who does not timely request a limiting instruction permits the evidence to be admitted for all purposes, although a later jury-charge instruction may still define its proper use.
- An appellate court may correct a clerical count-number error in a criminal judgment when the record clearly reflects the jury’s actual verdict.
Why It Matters
The decision underscores that evidentiary objections must be specific and consistent from trial through appeal. A defendant cannot preserve one objection below and obtain appellate review on a materially different theory.
It also illustrates the distinction between a defect in the conviction itself and a clerical error in the written judgment. Because the charge and verdict established that the jury convicted Johnson of aggravated kidnapping under Count II, the court corrected the judgment rather than vacating the conviction.