Johnston v. State, 38181
| Decision Date | 02 June 1965 |
| Docket Number | No. 38181,38181 |
| Citation | 396 S.W.2d 404 |
| Parties | Leon Willis JOHNSTON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
L. J. Varnell, Jr., Herman Fitts, Mineral Wells, for appellant.
Sam Cleveland, Dist. Atty., Stephensville, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is statutory rape; the punishment, death.
The mother of the injured girl testified that on March 7, 1964, the day after her eighth birthday, her daughter dressed and left and house at 5:20 p. m. to go for a walk in the neighborhood with instructions not to go farther than Second Avenue, that at 5:55 p. m. her daughter came running home screaming and crying and said 'Oh Mother, this man took me out away out into the country and laid his body up close to my little body', and 'it hurt so bad, mother'. She immediately called the police and a physician, and the girl was taken to the clinic.
The injured girl testified that she was eating an apple and that she was pausing on a bridge over a canal not far from her house watching the fish when a man whom she thought worked with her father stopped in a white pickup and asked her if she wanted a ride home. As she went around the back of the pickup she observed the word 'Ford' in red letters. Instead of taking her home, appellant, whom she positively identified at the trial, drove past the end of the pavement, turned off the road and came to a halt near an abandoned barn. Appellant instructed her to take off her pants and shoes and sox. When she demurred he stated, 'I'll never take you home if you don't do what I say'. She complied and also obeyed his command that she lie down on the seat of the pickup. Whereupon appellant unzipped his pants, took out the 'thing that he goes to the bathroom with' and put it in 'mine'. Just before doing so, appellant opened a colored box and put some 'medicine' down between her legs. When she cried out in pain appellant told her to 'shut up' or he would not take her home. After some time appellant let her up, told her to redress herself and returned her to a spot some two blocks from her home where he let her out and admonished her not to run or to tell anyone. She testified that she directed the officers to the spot near the abandoned barn and identified pictures thereof which were introduced in evidence.
Dr. O'Quinn testified that he examined the injured child before 7:00 p. m. on the night in question and found blood coming from the vaginal area, a tear in the hymen and live sperm which, in his opinion, had been placed there 'within hours' before.
Mr. Gaither, a witness, testified that he came out from Fort Worth on 'an assignment to pick up a pickup' from appellant in Mineral Wells and finally was able to locate is and take it into his possession on March 7, 1964, at approximately 5:50 p. m. He had started back to Fort Worth when he was taken into custody by the Sheriff. Later that night he was released and returned to Fort Worth. The following day the officers came to Fort Worth, took pictures of the pickup and its underside and took with them the front and rear wheels from the right side of the pickup.
Sheriff Sommerfeld testified about apprehending the pickup which Gaither was driving and proceeding under the direction of the injured girl to the abandoned barn where he recovered an old automobile hood from the ground, from which he detected tire tracks which corresponded in every detail with those from the tires on the wheels which had been taken from the pickup in Fort Worth.
Two days after the offense, Ranger Lynch went with appellant to a spot where appellant told him he had thrown a container of 'greasy stuff' and there found a colored container with metal top and bottom which was shown by the testimony of a chemist from the Department of Public Safety to contain a form of petroleum jelly identical to that found on the panties of the injured girl which also had been submitted to him for inspection by the Palo Pinto County officers. These are but a few of the minute details of this crime which were developed and presented by one of the most competent District Attorneys of our time.
Appellant's written confession was admitted over the sole objection that 'the defendant did not have sufficient mentality to understand the nature and effect of this statement at the time he made it.' Since the voluntary nature of the confession had not been and was not challenged in any way throughout the trial, and since there had been no evidence as to appellant's 'mentality' at the time the statement was offered, the court clearly ruled properly in admitting it in evidence.
Appellant called lay witnesses who testified that as a child he had not acted like other children and who 'always felt like he just wasn't all there.' However, his own witnesses testified that he had graduated from high school as an average student, had served a 'hitch' in the Navy and was honorably discharged. Appellant's principal witness was a neuropsychiatrist, Dr. Rubin, who had examined appellant one time since the commission of the offense, and who testified that in his opinion appellant was mentally ill in the realm of undifferentiated schizophrenia and was not in constant touch with reality at all times. However, Dr. Rubin testified that appellant knew the difference between right and wrong.
The State offered lay testimony that appellant was in their opinion of sound mind and the testimony of a practicing physician of 50 years experience who had interviewed appellant on frequent occasions prior to the trial and who expressed the opinion that he was of sound mind.
The evidence amply supports the conviction and the jury resolved the disputed issue of appellant's insanity against him.
We shall now discuss the remaining contentions advanced by appellant's two extremely diligent and conscientious court appointed attorneys in brief and in argument.
Attached to appellant's motion for new trial alleging jury misconduct are the affidavits of juror Bailey and juror Harris in which they state that during their deliberations the foreman or one of the jurors stated that if the death penalty was given there would be an automatic review of the case by the Board of Pardons and Paroles and by the Governor. Also attached thereto is an affidavit of one of appellant's court appointed attorneys which states that he interviewed juror Clark, who told him that during their deliberations one or more of the jurors stated 'that there had been too much of this kind of thing going on and that something needed to be done about it,' but that Clark declined to made an affidavit to such fact.
At the hearing on the motion nine jurors testified, and the affidavit of another was introduced. Appellant called jurors Bailey, Clark, Harris and Berry.
Bailey testified that a question was raised as to what would happen in case the jury voted the death penalty, and one of the jurors answered that there would be an automatic appeal to the 'State Board of Appeals' and then an automatic appeal to the Board of Pardons.
Clark testified that he had heard some people say that 'there is a lot of that kind of thing going on', but did not recall saying that he had heard others say 'that something needed to be done about it.' He further stated that juror Berry had mentioned 'appeal courts', but there was no discussion of the subject.
Harris testified that his affidavit was in error and that the question was answered by foreman Berry, who stated that the case 'could' or 'would' go to the Court of Criminal Appeals.
Berry testified that he answered the question by stating that the case could be appealed to a higher court and the Board of Pardons and Paroles, but that he did not say it would be automatic or mandatory.
The State called juror Kincaid, who stated that the question was answered by one of the jurors who said that the case could be appealed...
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