Johnson v. State, 46710
| Decision Date | 05 December 1973 |
| Docket Number | No. 46710,46710 |
| Citation | 502 S.W.2d 761 |
| Parties | Willie Gene JOHNSON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Harold P. Brown, Jr., Lubbock, for appellant.
Alton R. Griffin, Jr., Dist. Atty., and Pat Campbell, Asst. Dist. Atty., Lubbock, Jim D. Vollers, State's Atty., Buddy Stevens, Asst. State's Atty., Austin, for the State.
The appellant was indicted for the offense of burglary with intent to commit theft. A jury found him guilty as charged and assessed his punishment at eight (8) years.
Appellant's first ground of error complains of the trial court's failure to submit the fact issue of whether Bob Robertson, a State's witness, was an accomplice witness.
The record reflects that the home of Lois Long, north of Slaton in Lubbock County, was broken into and entered while she was in Houston between October 8 and October 13, 1971, and that two television sets, a radio and jewelry and other personal items worth $400 or more were taken from the house.
Miss Long testified that she did not know the appellant and had not given him or anyone else permission to break and enter her house.
On October 9, 1971, the appellant appeared at the Crawford Chevrolet Company in Slaton and let it be known he desired to acquire a used car. Bob Robertson, a salesman, assisted him. When the appellant indicated he wanted to 'trade in' a television set on the automobile, Robertson asked to see it and appellant said he would have to go home and get it. Robertson had been instructed in a sales meeting the day before to accept such trade-ins. The appellant returned in an hour ro so with a 21 inch color television console and Robertson got the sales manager to look at it and the appellant was then offered $288 for the set as a trade-in on a 1959 Chrysler. An agreement was reached and appellant left with the automobile.
Robertson testified he had not met the appellant previously, but subsequently observed him working in the service department of the Chevrolet Company, and still later learned that he had been employed there on previous occasions.
Investigation by peace officers led to the recovery of the television set at the home of a customer of the Crawford Chevrolet Company who had either purchased or borrowed the set from the company. In this respect the record is not clear. Crawford, the owner of the company, assisted the officers in the recovery of the set. Miss Long identified the set in the Sheriff's office by serial number and appearance as one of the television sets taken from her home.
There is no contention that Robertson was an accomplice witness as a matter of law, but appellant does argue that the fact issue of whether he was an accomplice witness should have been submitted to the jury for determination.
Appellant argues that Robertson might have known or should have known the television set was stolen, and this would be sufficient to support a jury determination that he was an accomplice witness. Attention is called to that portion of the record where Robertson testified that when the appellant returned with the television set, he was in company of two younger boys. When asked if he heard them talking, Robertson replied,
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