Johnson v. State

• Decision Date: 14 April 1971
• Docket Number: Nos. 43415 and 43416,s. 43415 and 43416
• Citation: 467 S.W.2d 247
• Parties: Matthew Donald JOHNSON and Marion Ernest McMillan, Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 247

467 S.W.2d 247

Matthew Donald JOHNSON and Marion Ernest McMillan, Appellants, v. The STATE of Texas, Appellee.

Nos. 43415 and 43416.

Court of Criminal Appeals of Texas.

April 14, 1971.

Rehearing Denied June 9, 1971.

Frank P. Hernandez, Vincent W. Perini, Dallas, for appellants.

Henry Wade, Dist. Atty., John B. Tolle, Harry J. Schulz, Jr., W. T. Westmoreland, Jr. and Edgar A. Mason, Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is injuring property belonging to another, the extent of the injury being over fifty dollars; the punishment as to each appellant, ten (10) years.

The sufficiency of the evidence is challenged.

On July 1, 1968, at about 10:30 p.m., a group of 30 to 50 Negro people, many of them dressed in a manner somewhat different from the dress of the ordinary customer, entered the O.K. Super Market one at a time. Appellants McMillan and Johnson were the first of the group to enter the store. They went to all parts of the store while appellants walked to the back. At this point, the employees heard glass breaking in the area in which the appellants were standing.

Merchandise in the store was scattered, broken, mutilated, and commingled by the persons who had entered the store. Describing the scene, an employee stated:

'There was milk and eggs all mixed together with cereal and sugar, watermelons and mustard, just most anything you could imagine was busted and broken.'

Five minutes after they entered the store, the group left. Appellants were the last to leave. A partial listing of the destroyed merchandise, which had a value in excess of fifty dollars, includes: 3 one-gallon jugs of milk, 2 five-pound bags of sugar, 2 one-quart containers of mustard, over seventeen pounds of tomatoes, several cartons of eggs, four boxes of detergent, many bottles of pickles, two quarts of cooking oil, many watermelons, and 12 one-pound packages of oleo. An employee saw appellant Johnson break two bottles of grape juice and drop a watermelon twice. He also saw appellant McMillan take a gallon bottle of milk out of the dairy container and drop it, breaking the container.

Later the same evening, after the store was cleaned up, appellants re-entered the store, bought some beer and McMillan commented, 'These white people she keep a nice clean store.'

We find the evidence is sufficient to support the verdict.

Appellants first contend that the trial court erred in refusing to disqualify himself and in refusing to grant their motion for continuance of the hearing on disqualification. In the testimony before the court, appellants showed that the trial judge, the Honorable James B. Zimmermann, was running for re-election in a contested race at the time of this trial. They also showed that the case was originally set in Judge Zimmermann's court, Criminal District Court No. 3, later transferred to Criminal District Court, then retransferred to Criminal District No. 3. There is no showing that the judge was disqualified. Nothing is presented for review.

Appellants base their motion for continuance of the above described hearing on the absence of two witnesses, whose anticipated testimony they have failed to show. Therefore, nothing is presented for review. Belrose v. State, 156 Tex.Cr.R. 322, 242 S.W.2d 378; Massoletti v. State, 165 Tex.Cr.R. 120, 303 S.W.2d 412.

Appellants' second contention is that the trial judge erred in refusing to grant a continuance of the main trial. This motion was filed and heard on August 19, 1968, the day of the trial. The record shows that the indictments were filed on July 15, 1968. The principal basis for appellants' motion for continuance was that they needed until the next term of court to secure the attendance of two witnesses. There was no allegation or showing as to when these witnesses would be available.

Further, the motion for continuance stated that due to the fact that the applications to take depositions of some five witnesses were denied, the defendants needed more time to talk to and to locate these witnesses in order to prepare an adequate defense to the charges pending against them. There is an entire lack of showing of the diligence exercised by appellants in endeavoring to interview or locate such witnesses. No error is reflected. Rodele v. State, 158 Tex.Cr.R. 167, 254 S.W.2d 122 and Burrell v. State, Tex.Cr.App., 446 S.W.2d 323.

Appellants' third contention is that the trial court erred in refusing a change of venue and that the trial judge favored the State in the venue hearing by admitting affidavits in lieu of witnesses. The testimony introduced by appellants at the venue hearing showed that appellants had been the subject of items on a news program of one of the major television stations in Dallas approximately four times in the preceding month; that a television newsman had read about them in the local newspapers eight to twelve times in recent months; that the appellants were newsworthy because they had opinions diverging from that of the majority of the public and because they had obtained an option to purcase a chain of grocery stores, one of which was the supermarket where the offense took place. Further testimony indicated that publicity, both in the newspapers and on television had shown that McMillan was a field secretary for the Student Non-Violent Coordinating Committee; that SNCC had a widespread reputation for being militant in black affairs; that there was publicity involving the incident at the supermarket out of which these charges arose; and that appellants' unusual manner of dress and hair style tended to cause a feeling of resentment among people in Dallas. Appellants also showed that they might be associated in the eyes of the public with destruction of property, interruption of business activities and conduct leading up to riots. All the defense witnesses testified that they were of the opinion that appellants could not receive a fair trial in Dallas County. However, they all testified that they could be fair and impartial jurors in Dallas County in spite of all the publicity with which they had come in contact.

In connection with the change of venue contention, it is well to observe that it was shown that Dallas County has a population of over one million persons. This is a far cry from what was before this Court in Rogers v. State, 155 Tex.Cr.R. 423, 236 S.W.2d 141, and Richardson v. State, 126 Tex.Cr.R. 223, 70 S.W.2d 1003, where the widespread publicity in a sparsely settled county required a change of venue. Further, this record shows efforts on the part of the trial court to restrict pre-trial publicity.

Rubenstein v. State, Tex.Cr.App., 407 S.W.2d 793; Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543; Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600, and Coffman v. State, 62 Tex.Cr.R. 88, 136 S.W. 779, cited by appellants are readily distinguishable from the case at bar.

There is no showing in this record that there were inherently suspect outside influences affecting the community's climate of opinion as to defendants which would result in a probability of unfairness. This is the test in the Fifth Circuit, Pamplin v. Mason, 364 F.2d 1. The Court did not err in failing to grant the motion.

At the close of the evidence in the hearing on the motion for change of venue, the State introduced seven affidavits stating that the appellants' witnesses did not have sufficient knowledge on which to base their opinions that the appellants could not obtain a fair and impartial trial in Dallas County. Appellants objected to the introduction of these affidavits into evidence; the objection was overruled. Such affidavits controverted the source of knowledge of the appellants' witnesses, as is permitted by Art. 31.04, Vernon's Ann.C.C.P. No affidavits were offered by the appellants.

Appellants next contend that they were denied a fair and impartial trial and due process of law in the selection of the jury. Particularly, they contend that their challenge to the array of jurors, request for attachment of absent summoned jurors and motion to shuffle the jury panel were improperly overruled.

The following facts are urged in support of appellants' challenge to the array and request for attachment. The records show that 618 prospective jurors were summoned for jury duty on the week of the trial. 195 of those were qualified as members of the panel for that week. It also appears that some 55 jurors were summoned but did not appear. Using 1960 census records, appellants showed that the total population of Dallas County was 811,261 White persons and 137,954 Black persons at the time of the census.

Appellants' figures show that out of the 618 prospective jurors who were summoned to serve, only 22 were from the predominantly Black South Dallas or West Dallas areas. Their calculations may also show that the percentage of White persons summoned and impaneled for jury duty was higher than the actual White-Black ratio of the total population for Dallas County, based on the 1960 census.

In regard to appellants' request for attachment of the absent summoned jurors, they alleged that they were denied an opportunity to be tried by a jury of their peers, as a result of the trial court's refusal to attach the absent summoned jurors. This allegation is based primarily on the fact that five of those prospective jurors resided within South Dallas and West Dallas.

At the time of the hearing regarding the jury selection, it was shown that this and all juries of Dallas County were drawn from the jury wheel in accordance with the law, and appellants were not able to show a single irregularity in the selection of the jury panel for the week. Mere showing that the jury panel does not exactly conform to racial percentages of the community does not establish systematic exclusion. Townsend v. Henderson, 6 Cir., 405 F.2d 324. Recently, the Fifth Circuit...