Johnston v. State

• Decision Date: 28 June 1967
• Docket Number: No. 40355,40355
• Parties: J. J. JOHNSTON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 522

418 S.W.2d 522

J. J. JOHNSTON, Appellant, v. The STATE of Texas, Appellee.

No. 40355.

Court of Criminal Appeals of Texas.

June 28, 1967.

Rehearing Denied Oct. 4, 1967.

Cox & Hurt, by Joe L. Cox, Plainview, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

WOODLEY, Presiding Judge.

The offense is sodomy; the punishment, 12 years.

The indictment alleged that on or about the 5th day of February, 1966, appellant used this mouth on the sexual parts of one Graham for the purpose of having carnal copulation.

The state's evidence reflects that appellant committed the act as charged in his apartment, in Plainview, upon Graham, a 16 year old boy, in the presence of 16 year old Easley and 17 year old Caddell.

At the time of the offense charged appellant, age 36, was Guidance Counselor in Plainview High School, he having begun such employment the first week in August 1965. Graham and the witnesses Easley and Caddell were among the high school students he counseled.

Graham's version of his involvement with appellant in homosexual acts was that it began about December 1, 1965, when appellant talked to him 'about outside life, girls, sex and stuff like that.' This was followed by a visit of Graham and one Bowley at the NuGriddle Cafe followed by a ride upon invitation of appellant and, after Bowley was taken home, Graham's first visit to appellant's apartment.

Graham testified that appellant 'assured me that he wasn't queer' and talked about hypnotizing him with a vibrator.

Two or three days later Graham again visited appellant at his apartment at his invitation, and appellant again said he could hypnotize him and it would help him. On this occasion appellant used the vibrator on Graham for some time and then started putting his hands on Graham's private parts--then pulled Graham's clothes off and 'used his mouth' on Graham's penis.

Other acts of oral sodomy committed by appellant upon Graham prior to the return of the indictment and before and after the act of February 5, 1966, were shown by the testimony of Graham, Caddell and Easley, as were acts of sodomy committed upon Caddell.

The first ground for reversal presented by appellant's brief relates to the overruling of his motion that he be allowed to reopen testimony 'for the purpose of proving by evidence and testimony that the witness Bowley has made statements to witnesses inconsistent with and contradictory to the testimony that he gave at the trial of the case * * *.'

Bowley was called by the state in rebuttal. He testified that on April 1, 1966, he and Eddie Zingerman spent the night in appellant's apartment and that he slept with appellant and that appellant told him that Graham had been over there on several occasions and that he and Graham had had homosexual relationships.

The formal bill of exception does not set out the testimony of the witness sought to be impeached or what appellant proposed to offer as inconsistent or contradictory.

The matter of reopening is discretionary and no abuse of the trial court's discretion is shown. Adams v. State, 154 Tex.Cr.R. 92, 221 S.W.2d 264.

Appellant's next grounds of error relate to the failure of the court to instruct the jury, in connection with his instruction concerning accomplice testimony, that one accomplice cannot corroborate another.

The court charged the jury that Graham was an accomplice witness and properly instructed the jury as to the necessity that his testimony be corroborated.

The objection to the charge complaining of the failure of the trial court to instruct the jury that one accomplice witness cannot corroborate the testimony of another is predicated upon the contention that the state's witnesses Easley and Caddell were accomplice witnesses as a matter of law or, in the alternative, there was a question of facts as to whether or not they were accomplice witnesses.

Neither Caddell nor Easley is shown to have participated in the act of sodomy by appellant on Graham which they witnessed. Neither is shown to have been a principal, accomplice or accessory.

If a state's witness has no complicity in the offense for which the accused is on trial, his testimony is not that of an accomplice, whatever may have been his complicity with the accused in the commission of other offenses. Washburn v. State, 167 Tex.Cr.R. 125, 318 S.W.2d 627, and cases cited; McClanahan v. State, Tex.Cr.App., 394 S.W.2d 499.

Our holding that Easley and Caddell were not under the record accomplice witnesses disposes of appellant's ground of error No. 3 which complains of the overruling of his objection to the charge for failure to instruct the jury that these witnesses were accomplices or to submit to the jury as a question of fact whether or not they were accomplices.

Appellant's ground of error No. 4 relates to his objection No. VIII to the court's charge as a whole because it did not limit the testimony by Graham as to other acts of oral sodomy upon himself by appellant 'to a showing, if it does, of unnatural attention toward such witness, if it does, but allows the jury to consider such testimony without restriction and without limitation as to the purpose for which the said testimony was admitted by the court.'

The trial court did not err in failing to so limit thetestimony as to other acts of sodomy committed by appellant on Graham. The evidence as to such acts was also admissible as evidencing the probability of the act shown by the testimony of Graham corroborated by the testimony of the witnesses Easley and Caddell.

Appellant's fifth ground of error relates to his objection IX to the court's charge 'for the reason that said charge does not limit the jury's consideration of questions propounded to the defendant's character witnesses by the district attorney of the nature of 'Have you heard of acts of misconduct by this defendant?' to test such witness' knowledge of the defendant's reputation, and by a failure to limit such testimony and consideration by the jury the court fails to sufficiently safeguard the rights of this defendant.'

7 The objection did not point out the questions asked; thename of the witness or the answer which appellant sought to have limited as testimony as to extraneous acts of misconduct.

The overruling of this objection to the court's charge does not reflect reversible error.

Ground of error No. 6 relates to appellant's objection XI to the court's charge on the ground that the charge as a whole did not limit the jury's consideration of State's Exhibit No. 1 (a letter by Aylesworth to appellant) to impeachment purposes only, but allowed the jury to consider the letter 'as determining the guilt of this defendant or that he is a criminal generally.'

Aylesworth was another teen-age boy who had been counseled by appellant. Graham, in his testimony, had referred to Aylesworth as having gone with him to appellant's apartment late in January when appellant attempted to kiss him (Graham) on the stomach to hypnotize him, after which the three went to the Pancake House and appellant bought their supper. Graham mentioned in his testimony that Aylesworth and gone to Mexico with him during Christmas week and later they went to Amarillo where they visited appellant and he took them to a drivein theater and to a bowling alley and bought them some rum and vodka which they drank. Graham also testified that appellant rode back to Plainview with them and 'played around' with Aylesworth on the way. He also referred to appellant's having written to Aylesworth and Aylesworth to appellant in March 1966.

On his direct examination as a witness in his own behalf, appellant testified that he received a letter from Aylesworth who had left school and gone to Belen, New Mexico--

'He wrote me a letter and told me he was doing real well over there and playing basketball and on T.V. and this sort of thing and was doing real well.'

Appellant further testified that the next time he heard, Aylesworth was in jail, charged with burglary.

When cross-examined as to Graham's testimony regarding the incident following which he bought Graham's and Aylesworth's supper, appellant answered that he heard Graham's statement 'and I believe if you will check the records you will find that Aylesworth was in jail in New Mexico at the time.' Asked if he did not 'proposition' Aylesworth in January when he bought the boys' supper at the Pancake House, his answer was: 'I did not buy their supper.'

Referring to his good relationship with Aylesworth, appellant further testified on cross-examination: 'I thought Aylesworth thought a lot of me, but he refused to abide by the school rules and promise to stay in school, so his mother sent him to Belen, New Mexico to live with an uncle.'

'Q. Well, I was just stating that you told me a minute ago that he wrote you a letter from New Mexico.

A. From New Mexico, he did write one letter.

Q. And that one letter that he wrote you, I take it that if he hadn't thought something about you or thought you were a pretty good counselor, maybe he wouldn't have written to you.

A. Do you want me to answer that?

THE COURT: If you can answer it.

A. I got a letter from him, and he told me that he was very happy in the school there and was a good school and he was playing basketball and he was even on TV--basketball was broadcast on TV, and that he thought he was straightening out his life and was going to pass, for a change.

Q. I guess he wrote this letter from the standpoint that he wanted you to know what he was doing and wasn't that he thought that much of you as a counselor.

A. I believe he asked--probably so. I don't remember exactly the letter. And that his records be forwarded.

Q. What all did he say in the letter?

A. I couldn't tell you for sure, other than what I have said, sir.

Q. You said that he wrote you and told you that he was out there now and he was straightening out and he was doing--

A. He had been failing every subject at Plainview High...