Johnson v. Beto

Citation337 F. Supp. 1371
Decision Date19 January 1972
Docket NumberCiv. A. No. 71-H-909.
PartiesLee Otis JOHNSON, Petitioner, v. Dr. George J. BETO, Director, Texas Department of Corrections, and L. G. Bounds, Warden, Coffield Unit, Texas Department of Corrections, Respondents.
CourtU.S. District Court — Southern District of Texas

COPYRIGHT MATERIAL OMITTED

William F. Walsh, Charles A. Keilin, Bobby H. Caldwell, Bennett Stokes, Arthur J. Mandell, Houston, Tex., for petitioner.

Joe S. Moss, Asst. Harris County Dist. Atty., Houston, Tex., Crawford C. Martin, Atty. Gen. of Texas, Robert C. Flowers, Lonny F. Zwiener, Asst. Attys. Gen., Austin, Tex., for respondents.

MEMORANDUM AND ORDER

CARL O. BUE, Jr., District Judge.

Petitioner, a prisoner in state custody, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §§ 2241, 2254.

On August 26, 1968, petitioner was tried before a jury for the offenses of possession and unlawful sale of marijuana. He was convicted only of the second offense, the unlawful sale or gift of one marijuana cigarette to a police undercover agent, and sentenced to thirty years confinement in the Texas Department of Corrections on August 27, 1968. The conviction was affirmed in Johnson v. State, 447 S.W.2d 927 (Tex.Crim.App.1970). Petitioner thereupon sought relief in the nature of an application for the writ of habeas corpus from the convicting court and later from the Court of Criminal Appeals, but without success in each instance. This Court has jurisdiction pursuant to 28 U.S.C. §§ 2241, 2254.

Petitioner challenges his state conviction on the basis of four alleged constitutional deprivations. He complains of a denial of due process of law owing to the fact that:

(1) He was improperly denied a change of venue and was put to trial in a county where prejudice was so great that he was denied a fair trial;

(2) He was unable to properly establish local prejudice because of the voir dire examination procedure of prospective jurors and so was denied the effective assistance of counsel;

(3) He was denied compulsory process for two witnesses; and

(4) He was subjected to cruel and unusual punishment since the sentence of thirty years was unduly excessive.

On January 4, 1972, an evidentiary hearing was held which was limited to the exploration of facts surrounding the claim of petitioner that he was denied due process of law by being put to trial in a county where prejudice was so great that he was denied a fair trial including any proof that local public officials conspired against petitioner. However, subsequent oral argument of counsel related to the state court record as well and was leveled at all of petitioner's contentions.

The facts necessary for decision will be briefly summarized from the proof adduced at the evidentiary hearing as well as from the evidence contained in the state court record. In 1967 and 1968, petitioner, a Negro, was the Houston and Harris County area representative for the Student Non-Violent Coordinating Committee (SNCC). In this position he was involved in many racially oriented activities such as the making of speeches, confrontations with public officials, and the participation in various demonstrations. In short, he came to be regarded by many public officials and citizens of Harris County, Texas as one of the most vocal and demanding of the black militants in the community. More specifically, during part of this time he was a student at Texas Southern University (TSU), which is located in Houston. He was suspended from this school in early 1967 because of certain racial demonstrations on campus. On May 16, 1967, a race riot occurred on the campus of TSU, and a Houston police officer was killed. Five TSU students were subsequently indicted on charges of assault with intent to murder. Petitioner was not so indicted, since at the time of the riot he was in the county jail charged with unlawful assembly as a result of a race related demonstration at a local junior high school. Nevertheless, petitioner's name was closely associated with various racially tinged speeches and demonstrations at TSU as well as the May 16 riot in view of his connection with SNCC. Subsequently, petitioner was involved in numerous other demonstrations, most of which were covered by the news media.

On November 2, 1967, the local news media reported that the SNCC was the cause of the TSU riot and that petitioner in that regard was "a hard-core SNCC militant". On the same day a U. S. Senate Committee investigation headed by Senator John McClellan was reported as attributing the cause of the riot to the SNCC. On November 26, 1967, petitioner was freely reported by the news media as advocating a revolution to remedy the local racial problems. On March 1, 1968, the District Attorney for Harris County and the Houston Bar Association in an unprecedented move filed a motion in the state court, where the five TSU students were to be tried as a result of the police officer's death, requesting that a hearing be held to decide whether there should be a change of venue because of the intense publicity and news media coverage of the case. A hearing was held on April 4, 1968, and on April 29, 1968, the trial judge ordered that the case be transferred out of Harris County.

During the time between the change of venue hearing and the actual trial of the five students, petitioner was indicted on April 16, 1968, for the offense involved herein and tried in Harris County four months later. On August 22, 1968, four days before the trial, petitioner sought to subpoena as witnesses the Houston Mayor and Chief of Police. The subpoenaes were returned unexecuted for the reason that these witnesses were out of town. Petitioner moved for a continuance on the grounds that these witnesses were essential to his defense. Petitioner asserted that these witnesses were material to the motion for change of venue, since Texas law permits a change of venue when it is established that there is a dangerous combination of influential persons against the accused. It was also alleged that these witnesses were material to petitioner's defense of entrapment at the actual trial. The motion was denied because it was not timely filed and because the witnesses were not material to the trial. Shortly thereafter, petitioner filed a motion for change of venue, alleging that there was community prejudice resulting from publicity given to petitioner's activities in Houston during the months immediately prior to trial. On August 26, 1968, the trial court conducted a hearing on this motion. Four witnesses appeared, two for petitioner and two for the State. The motion was denied after two reporters for the local news media testified that petitioner could get a fair trial in Harris County. One reporter stated that: "There has been ... probably less and less publicity or attention to him petitioner in radio and television news stories since the TSU matter." Transcript, at 182.

The case then proceeded to trial on the same date. Petitioner moved for individual voir dire of the jury panel out of the presence of the remainder of the panel. The motion was denied. During the group voir dire of the jury panel nine prospective jurors recognized petitioner's name. At the end of the voir dire, petitioner unsuccessfully moved for additional peremptory challenges in order to strike the jury panel members who had heard his name. Petitioner next filed a motion to quash the entire jury panel on the basis that they had been improperly qualified. The motion was denied. Petitioner then filed a second motion for change of venue but to no avail; again the motion was denied. The State then put on its evidence against petitioner, and he was found guilty of count two of the indictment, the unlawful sale or gift of marijuana, based upon the testimony of a police undercover agent. Thereafter, at the hearing on punishment the jury, upon presentation of evidence that he had been convicted previously of auto theft and that he had a bad reputation in the community, retired to the jury room and deliberated 37 minutes, returning to assess petitioner's punishment at thirty years confinement in the state penitentiary. Petitioner filed a motion for new trial, and a hearing was held on this motion. At this hearing the Houston Mayor and Chief of Police briefly testified that they had not conspired against petitioner. However, they were not permitted to testify, after the State objected, as to the publicity surrounding the TSU riot and its impact on the community.

It is obvious that petitioner received extensive news coverage from his various racially oriented activities for some time prior to trial. In fact, it is evident from the exhibits contained in the state court record that petitioner's name appeared either in one or the other of the two major Houston newspapers 44 times during an 18 month period prior to trial. It also appears that a number of these newsworthy items were reported by the radio and television media. In this connection it is beneficial here to expand upon some of petitioner's activities in the news as they were described at the evidentiary hearing. In April of 1968, petitioner solidified his unfavorable image as a black militant at a memorial service held in a local park for Martin Luther King which was attended by the Houston Mayor and which received broad news media coverage. Also in April petitioner appeared as a member of a panel on a local educational television program and created a most adverse impression of himself, as a participant, abruptly leaving the program at one point only to return after the entreaties of other panelists. In June of 1968, petitioner was arrested for disturbing the peace while engaged in further racial disturbances. In July of 1968 petitioner appeared before Houston City Council alleging that he and his wife had been mistreated by Houston police officers. As a consequence of these events petitioner continued to receive frequent...

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4 cases
  • Hussong v. State
    • United States
    • Wisconsin Supreme Court
    • March 5, 1974
    ...he had not formed an opinion as to the defendant's guilt or innocence and so swore.14 The basis upon which the court in Johnson v. Beto (S.D.Tex.1972), 337 F.Supp. 1371 inferred jury prejudice was the harsh 30 year sentence imposed by the jury under Texas law for the mere gift by a 'militan......
  • Jenkins v. United States, Civ. No. 14562.
    • United States
    • U.S. District Court — District of Connecticut
    • February 2, 1972
  • Jarrett v. State
    • United States
    • Texas Court of Appeals
    • March 2, 1983
    ...within the constitutional prohibition.' " McNew v. State, 608 S.W.2d 166, 174 (Tex.Cr.App.1978, reh. den.). See also Johnson v. Beto, 337 F.Supp. 1371, 1379 (S.D.Tex.,1972), aff'd 469 F.2d 1396. We therefore do not find that the punishment assessed Jarrett was cruel and Ground of error four......
  • Johnson v. Beto, 72-2218.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • December 20, 1972
    ...On the ground that Lee Otis Johnson had been denied a fair and impartial trial in a Texas state court, the United States District Court, 337 F.Supp. 1371, granted habeas corpus relief. Of course, Texas has the option of trying Johnson Upon briefs and oral argument, the judgment of the Distr......
2 books & journal articles
  • From the Wool-sack
    • United States
    • Colorado Bar Association Colorado Lawyer No. 9-6, June 1980
    • Invalid date
    ...2. Johnson v. State, 447 S.W.2d 927 (Tex. Ct. of Crim. App. 1969); reversed on grounds unrelated to length of sentence: Johnson v. Reto, 337 F.Supp. 1371 (S.D.Tex. 1972). At the time of writing, the District Court decision on resentencing had not yet been reported and I am relying on my rec......
  • From the Wool-sack: a Fond Farewell
    • United States
    • Colorado Bar Association Colorado Lawyer No. 33-9, September 2004
    • Invalid date
    ...2. Johnson v. Store, 447 S.W.2d 927 (Tex. Ct. of Crim. App, 1969); reversed on grounds unrelated to length of sentence: Johnson v. Rero, 337 F.Supp. 1371 (S.D.Tex. 1972). At time of writing, the District Court decision on resentencing had not yet been reported and I am relying on my recolle......

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