An appeals court has reversed two theft convictions against an Arlington man sentenced in September to two years in state jail for taking money to cremate and bury several bodies, then failing to do so.
The 2nd Court of Appeals in Fort Worth ruled Thursday that there was insufficient evidence to convict Dondre Johnson and rendered a verdict of acquittal on both theft counts.
Attorney Bob Gill, who handled Johnson’s appeal, said he was pleased with the decision. He called it “pretty unusual” that the court not only tossed out the convictions, but also rendered acquittals.
“The difference being that the error wasn’t one of law, it was one of fact,” Gill said. “There were insufficient facts to convict him of the charge. … It’s kind of a rare bird.”
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Gill said Johnson had been released on bond after serving his one-year sentence on nine misdemeanor counts of abuse of a corpse related to the case.
It was unknown Friday afternoon whether the Tarrant County district attorney’s office intends to petition the Texas Court of Criminal Appeals for a judiciary review.
“We believe the jury’s verdict was correct, and we are evaluating our options to uphold that verdict,” District Attorney Sharen Wilson said.
Johnson and his wife, Rachel Hardy-Johnson, ran the Johnson Family Mortuary together until July 15, 2014, when authorities were alerted to a strange smell coming from the Fort Worth business.
Investigators found several bodies inside that had not been embalmed or refrigerated and that were in various stages of decomposition.
Hardy-Johnson pleaded guilty in May to two counts of abuse of a corpse and one count of theft. She is serving a 21-month federal prison sentence on an unrelated conviction of food-stamp benefit fraud.
‘Ponzi scheme with human flesh’
During Johnson’s theft trial in September, prosecutors had accused him of running “a Ponzi scheme with human flesh.”
Family members testified that Johnson gave them the wrong ashes after promising to cremate their loved ones. In reality, the bodies remained at the mortuary, including an infant’s body that had been stored there for a year and a half.
Alex Kim, Johnson’s defense attorney, said in closing arguments that Hardy-Johnson — not her client — was the “boss” and had control of all the money needed to fulfill those promises.
Jurors took less than an hour to convict Johnson on the two counts of theft over $1,500. In addition to the two-year state jail sentence, he was fined $10,000 in each theft case.
Johnson’s appeal argued that the evidence was legally insufficient to support the theft convictions, that the prosecutor had improperly commented on Johnson’s failure to testify at the trial and that he was denied his right to his attorney of choice.
Felicia Braxton, whose family is still trying to locate the remains of her mother, Aundrea Jones, said she feels she is not the only person without the remains of their loved one. The Johnson Family Mortuary was entrusted with Jones’ funeral.
Braxton testified at Johnson's trial that for weeks she believed the ashes the family received were what remained of her mother, who died at 71 in 2014. But she and other family members later discovered that those ashes belonged to another family.
Family members have been trying to find Jones’ ashes ever since. The number associated with the box containing her mother's remains is 4065.
“Just because someone has told you they have returned your mother’s ashes to you, do you know?” Braxton asked. “Are you sure? Are you really sure?”
The family has hit a brick wall locating the remains, Braxton said.
“I have no idea how far we are away from justice,” Braxton said. “Will we ever see justice? What do we do at this point? I have no answer. I just know I have an open wound that I'm asking God to close.”
Question of intent
The 2nd Court of Appeals ruled only on Johnson’s first argument. Justices Lee Ann Dauphinot and Anne Gardner issued the majority opinion, and Chief Justice Terrie Livingston issued a dissenting opinion.
In the majority opinion, the justices noted that in regards to the first theft count, no evidence could be found showing that Johnson acted as a party to his wife’s wrongdoing.
Though he took possession of a cashier’s check for the cremation of that victim’s body, it was the funeral home — where he was an employee — that was obligated to fulfill the contract, Dauphinot wrote in the majority opinion.
In the second theft count, which involved multiple victims, the opinion pointed out that Johnson performed part of the contracted services with memorial services, wakes and a funeral.
Though the bodies were not cremated or buried, they remained in the mortuary “although in unspeakable condition,” the opinion states.
“Clearly, at the time the police arrived at the mortuary, the mortuary had not completed all the services for which it had been paid,” Dauphinot wrote. “But there is no indication of deception other than the fact that we can assume the family members expected the funeral home to do its job in a workmanlike and timely manner, and it did not do so.”
The opinion states the evidence must show that Johnson intended to deprive those who paid for cremation at the time he accepted their money.
“Although the State did prove unconscionable behavior on behalf of [Johnson] and the funeral home and [Johnson’s] repeated lies to cover up this behavior,” it failed to prove that intent, the opinion states.
Livingston issued a dissenting opinion, saying she believes that the majority opinion incorrectly applied the sufficient evidence standard in the case.
Livingston wrote that she believes that the state proved Johnson held himself out as a co-owner of the mortuary and that he carried out many of the operations, including negotiating contracts and signing documents.
She said she believes that with the facts presented in the trial, the jury could have inferred Johnson’s intent to deceive customers at the time he accepted money from them.