Billy Lee Johnson v. W. J. Estelle, Director, Texas Department of Corrections

GOLDBERG, Circuit Judge:

This case presents a good illustration of the perils of double jeopardy. On May 23, 1967 Billy Lee Johnson was found not guilty of the crime of “burglary of a private residence at nightime with intent to commit rape.” Five months later he was convicted of “assault with intent to commit rape,” on charges stemming from the same incident for which he was acquitted in his first trial. He was sentenced to 99 years in jail.

His conviction was upheld on direct appeal, Johnson v. State, Tex.Cr.App. 1968, 432 S.W.2d 98, and his subsequent petitions for a writ of habeas corpus…