Johnson v. State
| Decision Date | 05 November 1969 |
| Docket Number | No. 42279,42279 |
| Parties | Lee Otis JOHNSON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Will Gray, Bob C. Hunt, Bobby H. Caldwell, George C. Dixie, Houston, for appellant.
Carol S. Vance, Dist. Atty., William W. Burge, Asst. Dist. Atty., Houston, Jim D. Vollers, State's Atty., Austin, for the State.
The offense is the unlawful sale of marihuana; the punishment, thirty years.
Officer Williams, a witness for the state, testified that while acting as an under cover agent he met the appellant on March 1, 1968, and appellant asked him for a ride and he then took the appellant to his apartment. Around midnight, March 7--8, 1968, the appellant had Williams drive him to a friend's house for the purpose of obtaining some marihuana. After appellant returned from the house to the car he gave 1 a marihuana cigarette to Williams and told him not to let the police catch him with it because he 'could get twenty years for this.' The appellant had five other cigarettes in his hand at the time.
The appellant did not testify or call any witnesses in his behalf on the main trial.
At the punishment stage before a jury, the state introduced evidence that the appellant had been convicted for felony theft in 1964.
The first ground of error is that the trial court erred in overruling appellant's verified motion for a change of venue which alleged that there existed in Harris County so great a prejudice against him that he could not obtain a fair and impartial trial. The motion was supported by two affidavits. The state controverted the motion.
In support of his motion, the appellant called three witnesses.
The first witness was Carol Vance, the District Attorney of Harris County. He testified that this case had received little, if any, publicity to his knowledge, and he had not heard anyone mention it except those about the courthouse, and he had not heard any discussions or opinions expressed about this case; that there had been some brief news articles in the local paper about this case; that the appellant had received some publicity in connection with the disturbance at Texas Southern University (hereafter referred to as T.S.U.), a peace bond hearing arising out of a disturbance at the city dump and a claim of abuse by the police; that he had heard very little about the organizations to which appellant belongs and any demonstrations or agitations by them; that he filed a motion for a change of venue in a case involving T.S.U. Vance estimated the population of Harris County to be around one and threefourths million persons.
The witness Vance expressed the opinion that the appellant could get a fair and impartial trial in Harris County.
Reverend Hillary Smith testified that he had lived in Harris County for two and one-half years and was the Superior of the Monastery in Sharpstown and on weekends worked in two or three Catholic churches in Sharpstown. He testified that ther were strong feelings in Sharpstown against demonstrations; that he heard appellant's name mentioned in Sharpstown and at the cathedral downtown in connection with demonstrations and the riots at T.S.U., and he had talked with two or three dozen persons about demonstrations and police harassment; that there is a strong feeling against marihuana in general and that there is a feeling that those who demonstrate take marihuana; that he saw a newspaper report of appellant being charged with possession of marihuana and had three or four telephone conversations about it. He expressed the opinion that appellant could not receive a fair and impartial trial in this case in Harris County.
Martin Elfant, a senior consultant for a Canadian life insurance company, who had lived in Harris County sixteen years and had been acquainted with the appellant two years, testified that in the past year or so he had heard the appellant's name mentioned many times in connection with demonstrations by militant black people and in regards to the T.S.U. matter but that it was predominantly in the business area in the downtown and southwest areas of the county; that he had provoked discussions about demonstrations and talked to hundreds of persons about them, found them both favorable and unfavorable toward civil rights, T.S.U., and the appellant, but a majority were opposed; that he had a telephone call from a client and friend the day appellant was charged with possession of marihuana who said it did not make any difference whether he was guilty because he was guilty of something; that a majority of the people he talked with correlated appellant's name with the T.S.U. demonstrations and they are opposed to him and think he ought to be put away, and that he could not receive a fair trial in Harris County.
On cross-examination, he testified that he had known the appellant two years and most of his close friends are appellant's friends which are 'possibly half a dozen'; that he is vitally concerned with the civil rights movement therefore he discusses it, and admits that he had prejudice and bias in favor of the appellant; that the marihuana case has not been discussed, but people think he ought to be put away; that it a prospective juror had not heard of the appellant and did not associate him with other incidents he could get a fair trial.
The state called two witnesses in contravention of appellant's motion.
Bob Tutt, a news reporter for the Houston Chronicle for eleven years, covering the criminal courts for the past two years, testified that Harris County had a population between one and one-half and two million persons; that he had had numerous discussions with persons concerning pending cases, and had heard no expressions from anyone outside the courthouse and newspaper people that appellant could not get a fair trial; that there had been about four newspaper stories about this case, but there had been a story about a peace bond and other incidents; that no indictments were returned against appellant or the group of which he was a member in the T.S.U. matter. He expressed the opinion that because of the cross-section, diversity, and cosmopolitan nature of the population, the appellant could get a fair trial in Harris County.
Tom Fox, a radio and television reporter for seventeen years with courthouse assignments, testified that the news of appellant's arrest on this charge had been very small, and he had not heard anyone express an opinion that appellant could not get a fair trial in this case; and further stated that a jury could be selected who had never heard of the appellant in any way.
On cross-examination, he testified that the appellant received some publicity which was not extensive during the T.S.U. demonstrations, and very little during his peace bond hearing and when he complained of abuse by the police. Fox expressed the opinion that the appellant could get a fair trial in Harris County.
At the conclusion of the voir dire examination, the appellant made his second motion for change of venue on the ground that ten of the prospective jurors had heard or read of the appellant through the news media; and because of the court's denial of his motion for individual examination of said jurors for the reason...
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