Johnson v. State

• Decision Date: 20 May 1964
• Docket Number: No. 36959,36959
• Citation: 379 S.W.2d 914
• Parties: Lee Otis JOHNSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 914

379 S.W.2d 914

Lee Otis JOHNSON, Appellant, v. The STATE of Texas, Appellee.

No. 36959.

Court of Criminal Appeals of Texas.

May 20, 1964.

Rehearing Denied June 24, 1964.

Jack D. Bodiford, Will Gray, Houston, for appellant.

Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough, David Ball, Jr., and Daniel P. Ryan, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Presiding Judge.

The appellant Lee Otis Johnson was jointly indicted with Kenneth Craig Johnson for theft of an automobile of the value of over $50 belonging to Ellis Bob Foy.

Severance was granted and, upon a trial on a plea of not guilty, the jury found the appellant guilty and assessed his punishment at two years in the penitentiary.

Ellis Bob Foy testified that on January 3, 1963, his 1959 Bonneville Pontiac automobile, which was worth more than $50, was parked in his driveway. He parked it there at 3:30 P.M. and at 1 o'clock that night he discovered that it was gone.

The owner testified that he did not know the appellant and did not give him or anyone else permission to take his car; that he reported the car stolen and recovered it the next day.

Menthea Ann Terry testified that the appellant and Kenneth Craig Johnson drove up to her house at 12:30 A.M. and she got in the back seat of a brown 1959 Bonneville Pontiac. Kenneth Johnson was driving and the appellant was sitting beside him. The witness testified that she had known the appellant and Kenneth Johnson for about six months and had never seen them in the 1959 Pontiac before.

Menthea Ann Terry further testified that they drove to a Crowflite filling station on Almeda between 1 and 2 A.M. and when the attendant came to the car and leaned over to ask what they wanted, Kenneth Johnson pulled a pistol which belonged to her and said 'Give me your money, man'; that the appellant reached his hand out and told the attendant to put the change in his hand, which he did; that Kenneth Johnson took the money and told the attendant to walk over toward some tires and when he did, Kenneth Johnson drove off; that a cab followed them several blocks and when it got close the three of them abandoned the Pontiac.

Alexander Roberts, taxi driver, testified that at the Crowflite Station he saw the attendant standing very close to a brown 1959 Pontiac; that the Pontiac left and the attendant, who had backed away, said he was just robbed and asked him to follow the car and get the number; that he followed the Pontiac which, after a series of turns, was parked and its occupants got out and walked toward a building; that he notified his cab dispatcher by radio and in a short time police arrived and he passed on to them what he knew; that he was unable to identify any of the occupants of the Pontiac.

Patrolman Joseph A. Gamino testified that he was in the area and arrested Kenneth Craig Johnson who 'was hiding between a wall and an air conditioner unit beside a house * * *.'

The state having waived any objection to his testifying, Kenneth Craig Johnson was called as a witness for the appellant. He testified that he was not related to the appellant; that he was serving a term in the penitentiary for theft of the 1959 Pontiac belonging to Ellis Foy; that he pleaded guilty to such theft and that the appellant had nothing to do with it...