Johnson v. State

• Decision Date: 25 April 1979
• Docket Number: No. 2,No. 58915,58915,2
• Citation: 583 S.W.2d 399
• Parties: Jack JOHNSON, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 399

583 S.W.2d 399

Jack JOHNSON, Appellant, v. The STATE of Texas, Appellee.

No. 58915.

Court of Criminal Appeals of Texas, Panel No. 2.

April 25, 1979.

Rehearing En Banc Denied July 18, 1979.

Phillip Westergren, Corpus Christi, for appellant.

William B. Mobley, Jr., Dist. Atty. and Eric Brown, Asst. Dist. Atty., Corpus Christi, Robert Huttash, State's Atty., Austin, for the State.

Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.

OPINION

DOUGLAS, Judge.

Jack Johnson appeals his conviction for aggravated rape. After finding that he had previously been convicted of a felony, the court assessed punishment at life.

Johnson contends that the court erred when it denied his request for a mental examination, admitted mug shots of Johnson, allowed a State's witness to bolster identification testimony, refused admission of a written prior inconsistent statement, admitted the fruits of an illegal search and seizure, allowed the State to make an inaccurate statement on voir dire, admitted inaccurate pictures of the victim, told the jury that he did not want a mistrial, refused to excuse a juror and continue the case with eleven jurors, refused to allow the defense to question a juror, admitted hearsay evidence and refused admission of checks. Johnson also contends that the prosecutor deliberately denied him a fair trial and specifically contends that the State committed error by suppressing evidence, referring to the defense's motion to suppress evidence, eliciting incompetent evidence that the victim's wounds looked like someone was trying to kill her, improperly questioning a female witness, and making repeated improper jury arguments. Appellant also contends that the evidence to support the aggravated portion of the conviction was insufficient as was the proof of his prior conviction and that the indictment was defective. We overrule the contentions and affirm.

S. J., a 17-year-old, had helped her grandmother move to Corpus Christi and was staying with her during the early summer of 1977. She arrived at her grandmother's apartment complex around 11:30 p. m. on June 21, 1977. A man, whom she identified as appellant, approached her car, punched her in the face, told her he had a gun and ordered her to come with him. S. J.'s hands were bound and she was driven in a pickup truck. Johnson told her that he doubted she would see daylight again. S. J. was taken inside a building where Johnson had sexual and anal intercourse with her. He then bound her legs, placed the rope around her neck, and inserted a metal rod in her vagina. He subsequently beat her with the rod. She was dragged naked back into the pickup and placed under a tarp. Johnson then drove her into the countryside and hit her several more times with the metal rod. S. J. testified that she played dead. Johnson drove off. S. J. was hospitalized for three days. She had numerous wounds and several cuts on the head which required eighteen stitches to close. Two doctors gave their opinions that the blows she sustained could have caused serious bodily injury and a substantial risk of death.

The aggravated portion of the instant indictment alleges that "in the course of compelling her to submit to such intercourse he did then and there cause serious bodily injury by striking her on the head with a metal rod." Bodily injury is defined as "physical pain, illness, or any impairment of physical condition." V.T.C.A., Penal Code, Section 1.07(a)(7). Serious bodily injury has several definitions including "bodily injury that creates a substantial risk of death." V.T.C.A., Penal Code, Section 1.07(a)(34). The jury heard S. J.'s description of the blows she received, they observed the metal rod, they heard the doctors' description of the injuries and their opinions that the blows could have created a substantial risk of death. The evidence was sufficient for the jury to find that the blows to the head caused physical pain and created a substantial risk of death.

Johnson also contends the evidence was insufficient to prove his prior rape conviction was final before the commission of the instant offense. The prior conviction was proved with certified copies of the judgment and sentence. They reflected that Johnson entered a guilty plea and was convicted and sentenced on January 16, 1974. The record is silent concerning notice of appeal. Appellant offered no evidence.

The judgment and sentence do not indicate notice of appeal was given. If this were the case, the prior conviction became final during January, 1974. Once the State introduces such prima facie evidence of a final conviction, the defense has the burden of proving that the conviction was not final. Ashley v. State, 527 S.W.2d 302 (Tex.Cr.App.1975). No such proof was presented. Thus, the evidence shows the prior rape was final in January, 1974 and the instant offense was committed on June 21, 1977. The proof was adequate to show the prior conviction was final before the commission of the present offense.

Johnson contends the indictment fails to allege that he had sexual intercourse with S. J. because it alleges only that he did "compel her to submit to sexual intercourse." A motion to quash on this issue was overruled. Johnson argues that "(i)t is quite possible to compel one to submit to something without her actually submitting." We disagree. Taken in context, we find that only by straining the English language beyond common sense can the questioned phrase be read not to mean that sexual intercourse was accomplished. The motion to quash was properly overruled.

Complaint is made that the court should have ordered a mental examination of appellant. Johnson never requested such an examination. He did file a motion for continuance listing several reasons including that he "may not be of sound mind." In the absence of a request, the court was under no duty to order a mental examination.

Although he does not specifically assign it as error, in his argument concerning the mental examination, Johnson suggests that the court should have on its own motion ordered a competency hearing. He argues that the motion for continuance and a trial outburst made by Johnson in which he threatened to get the prosecutor were sufficient to create a bona fide doubt as to Johnson's competence. The language in the motion for continuance can best be described as tentative and conclusory. The trial outburst, while unwise, was lucid and was not repeated during the trial. Standing by themselves, these facts do not raise a reasonable doubt as to Johnson's competence.

Johnson contends that mug shots were admitted into evidence, thus implying that he had a criminal record. S. J. had identified Johnson at a pre-trial photo spread. The photos of Johnson that were in the photo spread, a front and profile, were admitted into evidence. The photo did not contain a number, date or any other writing. He contends that the photograph showed a chain around his neck which indicated that this was a mug shot. Men now often wear chains as jewelry. It does not follow that the jury concluded that this was a mug shot. We disagree with Johnson's argument that a profile picture implies a police record. The photograph was properly admitted.

Johnson contends that Officer Olivia Escobedo, who was present at the pre-trial photo spread, should not have been allowed to bolster S. J.'s unimpeached identification testimony by testifying that S. J. had identified appellant's picture. S. J. was vigorously cross-examined concerning her identification of Johnson. The State may bolster an identification witness' testimony when that identification is challenged by cross-examination. Proctor v. State, 503 S.W.2d 566 (Tex.Cr.App.1974). No error is shown.

Complaint is made that S. J.'s prior, written statement, which was inconsistent with her trial testimony in that it stated her attacker had a moustache, should have been admitted into evidence. On direct examination, S. J. testified that her attacker did not have a moustache. On cross-examination, defense counsel had her read a prior, written statement wherein she described her attacker as having a moustache. Since the contents of the statement were before the jury, exclusion of the actual writing could not harm appellant.

Johnson's next contention concerns the admission of physical evidence from the building where the rape occurred. Johnson contends that this evidence, consisting of blood, hair and rope samples along with pictures of where these samples were taken, was the product of an illegal search and seizure. The place searched was a building which was leased by Johnson's father for the purpose of conducting business. The items seized were discovered in an open, nearly empty room; they were not concealed. The business had been moved and all that remained was some equipment. Johnson and another employee had a key to the building. The court ruled that Johnson had no standing to contest the search.

Standing can be established in three ways: (1) the accused is lawfully present at the premises during the search; (2) the item seized is an essential element of the offense, or (3) the accused has either proprietary or possessory interest in the place searched. Kleasen v. State, 560 S.W.2d 938 (Tex.Cr.App.1977). In the recent case of Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme Court stressed that Fourth Amendment rights are personal and claims of standing should be carefully scrutinized. The Rakas Court also gave careful consideration to Rakas' expectation of privacy in the place to be searched.

Johnson argues that he had a possessory interest in the property. The record reflects that he had access, as an employee, to the building which was searched. His father, another employee and the owner also had access to the building. Under the facts of this case we hold that Johnson's access as one of several employees and others with such access does not create a possessory interest. S...