*1 BURNS, Appellant, John Franklin Texas, Appellee.
The STATE of
No. 37516. Appeals
Court Criminal of Texas.
Feb. 1965.
Rehearing April 7, 1965. Denied Mehr,
Louis appointed G. atty., Court Ramsey, R. Houston, appellant, for J. Briscoe, Atty., Frank F. Dist. Carl E. Dally, Brough C. and Thomas C. James Dunn, Attys., Houston, Asst. Dist. Douglas, Austin, Leon Atty., B. State’s the State.
McDONALD, Judge. Presiding murder; punishment, offense is death. adduced re-
flected from 10 witnesses. On day August, appel- the 21st lant, Burns, Perkins, Franklin W. H. John Odum, deceased, spent good Jessie J. portion going of the evening from bar to bar, beer, drinking in the section surrounding Houston and areas passes which the Market Street Road *2 appel- and, young Roberts County, up lights, in the car Texas. Harris Perkins pockets going Bet- appellant about saw lant met 7:30 P.M. at Jack diteh, ty’s Bar, com- in heard Lounge lying or a in Cloverleaf man the man gurgling from They thought some was a sound munity on Market Street. drank man, though Then, The together. in ditch. noise sounded beer with another could they phlegm Red in throat and Gregory, the man had his Franklin went moaning and get The Bayou, Lantern Greens drank it out. man was where in beer, proceeded a Bar groaning. and then Sand’s to street, Bayou. down the also in Greens wrong, being asked what Appellant, to there, appellant Perkins went From drunk, buddy his replied that Drive-In, House or Eddie’s Ice go on. them okay, and for everything was Aft- Bayou, Gregory leaving Greens them. got Roberts As soon as They go on. at er an hour to an a half about hour and something home, mother told his House, appellant Ice Eddie's Perkins and County They called Harris wrong. subsequently stopped “The at left his Then, Roberts and Sheriff’s Office. There, Place” Cloverleaf. about 9:30 met scene and back went brother Odum, P.M., they met 10:00 Jessie wait- Deputies. While Sheriff’s together, The three of deceased. them left scene, truck and from which ing at truck, appellant Odum and disappeared, the appellant had They and Perkins in his own went vehicle. Roberts young by in his truck and drove Cloverleaf, Charlie’s Catfish Place followed deputies, pointed it out to beer, hour spending a an drank about half Appellant had arrested him. appellant and there, From on to there. continued type blood, of the same as that Betty’s & Place in truck and Perkin’s Jack hands, face, ceased, on clothing, his on Then, they drank one beer. back to went and at possession, knife of which deceased, Catfish Charlie’s. The car blood spots on his He had truck. various Odum, was at the Red Lantern. At Cat- Deputies shoes. found the on his Charlie’s, fish Perkins and de- let ditch, from cut lying in the with his throat go his ceased out of truck and them saw fell badly almost so his head ear to ear Then, toward Perkins truck. lying they moved him. He was off when Bayou turned back and went to the Greens his piece top pipe. The back on of a Cafe. That was the he saw last time that some had been struck—a blow with head Odum alive. wounds, He had mortal instrument. four throat, or stabs the cut and three cuts night, sixteen-year-old On this L. James The as to the left chest. Roberts, High a student at Channelview of the wounds was that of seriousness School, gone ato dance with another Examiner, Dr. County Medical Harris boy Townsend, girl named Vance Jachimczyk. Sherry people young
named Brown. The father, Sherry’s were in a car driven by testimony of Roberts was corrobo- Brown, home, way Robert on their about Sherry that of Miss Brown. rated They going Highway 11:30 P.M. Street, Deputy Klevenhagen is near testified that Market and had John quar- in a Highway going lying turned off the exit of the deceased dead he found Channelview, pool easterly deep The witness proceeding in an ter-inch blood. from direction. This related: “His throat was cut was the feeder street to further head Young barely It was Sheldon Road. Roberts a truck ear to ear. saw response question as to the the side of the road and told Mr. Brown on”. In wound, thought depth “You could “funny” he said: something was ditch, way through his head. His He had seen a man in see all the there. cut and his neck was cut com- another man over him. Brown backed throat was Mr. pletely through. only thing Odum, that held that the put place it on the stretcher head when Perkins in her late on came the eve- my it, had to take hand and hold ning “they and that were all keep falling body.” visibly off intoxicated,” and, “I asked them to leave.” *3 caught appellant Deputy Klevenhagen witness, Appellant recalled state’s quarter of the location about a mile from John appellant Klevenhagen, who testified that pointed crime, of after was appear drinking. did not to have been by young out Roberts. He testified as to spattered on condition—blood Deckman, witness, a state’s was Officer face, glasses, his blood on his blood over by appellant, he recalled testified that pockets, pockets top his blood his intoxicated, he did think was not pockets, where he had run hands in his his “he did not drinking, but he had been but hands, blood his blood on the soles of appear intoxicated.” pockets his boots. The deceased’s Appellant turned inside out. had consider- Appellant then took stand in his own money pockets able in his when he was personal age, behalf his and testified arrested, and stated his confession that background, marriages, relating his his events, he had drawn day $20.00 navy army in the vari- service forty-five had at cents left joints evening ous beer visited Appellant killing. time of the stated his question. He Bill Perkins let related that put confession he money that which deceased, Odum, him and out “got pocket. he off in his shirt Jessie” truck; that to drive the de- he offered said he ceased to his car but deceased voluntary statement of was go wanted to to Channelview. offered evidence. Prior to it ad- mitted, judge ap- the careful trial afforded Appellant suggested de- related that he pellant’s opportunity of, counsel the and he him his car and “then ceased that he take fully witness, Captain examined state’s M. there”, you go can from but deceased County F. Patton of the Harris Sheriff’s “Well, people if don’t do what stated: Office, dire, presence voir out to, making want them I have means of them jury, on the facts and circumstances Appellant do said that after deceased it.” surrounding taking of the confession. he foregoing statement that made No force or coercion was thing to do was to take cided the best raised, inquire did if counsel him to that he started to- Channelview appellant was intoxicated at the time that he Channelview, he thought but ward he gave statement, and the witness re- stopped he went had flat tire and sponded Appellant’s that he was not. right side truck. He around to objected counsel then stated that he compart- got flashlight glove from the confession, but he did not state what ment, tires checked his and found grounds. judge trial then stated that flat, put flashlight not he held the confession admissible. The glove compartment and at that time “Jessie brought was then in and the confession ad- up and straightened turned around and mitted into evidence and no further nor . looking glassy-eyed, a weird at me all urged other nor any look, and slid truck with that out motion to strike made. piece Appellant pipe in his hand.” stated that he scared and he did the Appellant adduced from the taught thing that knew to do—“I was all witness, Fowler, Ruth who testified that she myself.” the time the service defend owned the beer tavern on Market Street knowledge Appellant disclaimed ownership related pocket Road known as “The Place”. She knife had on, “this fellow telling go boy the Roberts and which the officers recovered Appel- it”. is drunk. I will take care of into the evidence been introduced lant of deceased. was then shown a Appellant exhibit. said the state as an recognize could deceased’s testified he Jessie, “trying to de- remembered face, wide and that deceased’s neck was him, piece myself from and that fend testimony: swung open. Then came this pipe.” that the deceased He stated pipe, him he was “Q: enough know human You about piece getting the recall hit. He beings cut to know that man who recall pipe away nor did he pf that throat had have a lot muscle piece pipe. deceased with the hitting behind It it. couldn’t a little-old was not also testified that he fish It had to be a lot of knife. cutting deceased. aware of when he was muscle?” *4 sir, “No, After it first. He stated: not at left, like there and I it seemed was over Yes, “A: sir.” there, space until I was a blank in between “Q: inflicting Do remember you River, I and then got to San Jacinto neck wound?” Appellant turned and came back.” around back to the scene then related that came exactly “A: Not wound.” neck were and the Sheriff’s car and an ambulance there; just leaving that the ambulance was properly charged The Court slowly; he did and he started real self-defense, on the issue and this issue of killed the deceased know that against appellant. was resolved that he told the officers that a doctor come to take deceased to amply find the suffi We but the him won’t officertold that “a doctor support cient to the verdict. good.” Appellant do him no stated that the first he knew that was exception. are no bills There formal was dead. He then “Did you asked: exceptions objections taken No know at that time whether he had been any request charge, nor court’s sir, replied: “No, cut?” He until the special charge. made for a testimony told me.” Later on his officers Appellant’s urges as one counsel error was asked his counsel: contention, evi- which is the admission into you cutting “Do remember him?” photographs. This con- dence of certain “Yes, sir”, but stated: he related brought tention is forward informal bill happened that he did not remember exception. Initially the state adduced deceased, he cut just after that he re- Deputy testimony from Eddie Sheriff falling, membered “him and that was it.” Knowles testified all of took
Appellant they truly and that and ac- testified cross-examina- curately represent what in them. tion that he had knife in hand but is shown his it state then offered evidence six that he did not know where came from. into question: photographs, different was then asked the “And with state’s exhibit No. He 9, knife, (which only public road), say, remember showed a you you I believe Odum, having objec- you don’t remem- offered earlier without Ap- tion. Exhibits 3 and your testimony?” ber where. Is that State’s Nos. picture appellant’s
pellant responded: “Yes,
Appellant
respectively
hands
sir.”
question:
appears
subsequently
with what
to be a few blood stains
asked this
them,
lying
of a man
“Why
you
did
hit him in the head
face
replied:
clump
piece
grass
"I didn’t hit him”. down
with a
pipe?”
He
pipe
Appellant
body.
protruding
testified that he did not remember
from underneath his
robbing the
remember At the time these two
nor did he
exhibits
ad-
ceased,
lying
mitted
counsel
“If
stated:
down on his face on a
please
court,
object
pool
would like
stretcher in
quantity
or small
of blood
admission
these
evi-
underneath
head and blood on the back
go-
right
dence”. The Court then stated: “I am
of his head and
ear and
across
ing
your objection
the back
to overrule
neck.
(State’s
Exhibit No. 3
State’s Ex-
Davis
cites the
7)
hibit No.
and will rule on the others lat-
880, case,
Tex.Cr.R.
Then,
er.”
conclusion
testimo-
Judge Woodley
wrote the
ny,
rested,
when
re-
cited therein the case
Shaver v.
offered Exhibits Numbers
6 and with
Appel-
162 Tex.Cr.R.
the statement court in view of points lant out that to the law of according case, the fact that “It is now an issue of the the above cited case the material factor malice, murder with or without determining admissibility photo- malice, purpose showing for the think graphs is whether they illustrate a mate- are admissible.” Court rial Craig fact. also cites responded: right”. Appellant’s “All coun- in which sel then as be- stated: “The same this Court held that fore. The Medical Ex- light shed and tended to transaction aminer is sufficient to describe the nature refute testimony and his version *5 wounds, and seriousness of the and these place. as to injury how the fatal A took would inflame the minds disputed issue of fact was involved in that jury.” The Court overruled the case photographs which the tended to solve. and passed exhibits the referred to were State, 525, Wilkerson v. 342 170 Tex.Cr.R. inspection. the for their sides Both S.W.2d by 431 is cited us illus- then rested their case.
trate photographs his contention that the complained photographs of disputed Two the admitted resolve a fact colored, are State, Tex.Cr.App., the other two black and issue. Alcorta v. 294 one, 4, 112, by white. The first Exhibit is colored a S.W.2d held also cited photograph lying photographs that of the deceased shown on to show were admissible open with eyes and his wounds, entire number and location of which lying open just throat inch disputed about an wide a resolution of fact issue a chin, showing appears under the created by appellant photo- also graphs organs some internal on the bearing muscles or were “introduced as on the question interior throat and a mass red dis- of malice.” We shall later throat, gashes Appellant blood chin two red cuss finally on this case. cites us the on 5 State, the chest. Exhibit is similar to case of No. v. 153 Gibson Tex.Cr.R. except No. 4 No. S is in color 223 S.W.2d which shall discuss later. picture. shirt in this Ex- has a Appellant testimony contends that 5 appears by hibit No. to have been taken Joseph Jachimczyk Dr. Alexander that photographer took the shot directly of Deputy Klevenhagen body, pic- Johnny Sheriff above deceased’s while the clearly dispute shows appears ture without the nature of taken in Exhibit No. 4 to have wounds, probable their photographer location and the standing taken at wound, effect of each the left and he side of deceased. Exhibit No. 6 contends point in appellant’s testimony, photograph is a black and white the de- does deny ceased, cutting the deceased or lying on his back with cutting extent clearly location of ap- slit throat visible. This exhibit Appellant the wounds. then cites photographer the ad parently taken while State, ditional cases Borroum v. 168Tex.Cr.R. right side Ex- deceased. standing 314; State, Whaley S.W.2d v. photograph 8 of de- hibit No. is a colored 331
695
“A
cannot
party
admitted.
should be
Tex.Cr.App.,
and Cavazos
testimony, as set forth does above its de- ently conflicts created some in in several create a fact issue opinions years its through the cisions juncture in one stances. testified photo- admissibility dealing with testimony he did not know where of his particular state graphs. case the In this cut the deceased. also testified urged admissibility hit the deceased with that he theory showed malice. pipe. dis This created a iron cases, properly among cited us other puted issue fact made admissible Tex.Cr.R. 160 the cases of photographs. The the front 124 and Gibson v. S.W.2d part clearly support show the of deceased’s from the those on the care- wounds have not position. of its We injuries prior holdings in these fully back side of deceased show examined *6 head, indicating the iron cases, blow from the the but we have examined pipe object. or some similar We overrule admis- dealing entire field of appellant’s photo photographs. the sibility contention. While inadmissibility of graphs gruesome, they were were admis similar to the in the case are facts testimony gave sible. The the various wit pathologist in case bar that a body nesses who and testified lengthy testimony, detailing observed the an account child, they detail grue year in as to what saw was also old by the sustained a 5 wounds stomped charged some. The state the allegedly had been who had beaten specific therein, with a crime had the by burden the wherein the defendant injuries proving charge beyond such a reasonable that child’s fendant contended the ad- carry In were attempting by Photographs doubt. such burden were falls. caused accept they tended had to it them that mitted, it matters as found not for the reason issue, were squeamish and could not be about them. fact but to solve a intent. the evidence issue malice and While was cumulative admitted the on opinion description by that the the this Court body sense as it This unanimous was a Gibson, supra, had already was found been the in 1954 the related to in which case of jury, photographs present approval. by tended to was cited tending appel details material to refute Gibson, case supra, was murder testimony lant’s and thus the dis resolve penalty was Big Spring in which death puted places fact issue as where opinion imposed. Judge Graves wrote was cut decedent and his struck or hit for re- pipe, way with the iron in a which state for on motion this Court accurately by complained ments not certain hearing witnesses could as in which Ap- portray. having by Evidence a natural tenden introduced the state. cy pellant establish controversy urged argument the facts oral pictures body State, supra, of the deceased’s were in- Alcorta was a murder flammatory probably jury penalty caused the case im- in which the death opinion posed. to render a verdict of by death. killed his wife stab- bing reflects that objected counsel her with a Five knife. pictures the introduction of these showing were introduced proper predicate reason no body showing had been nude laid to introduce them their authen- body. They since stab wounds on ad- were ticity properly had not been objection shown. “It will mitted over in- were thus be objection noted that the flammatory prejudicial went and had to a photo- verification bearing fact that case. There graphs correctly portrayed by the matter the state that there stab were 32 wounds supposed which body, to reflect.” and cuts but denied Judge cuts, Graves then states that the that there were 32 said: “I However, fully by so, met the state. stab her maybe times but then outlines the opinion evidence which shows 32.” The states that the record fully did actually qualification create a sustains the trial court’s issue, pictures certifying would have pictures that the allowed fact resolve, been admissible to but he con- be bearing then introduced as question opinion by cludes the that the statement malice in the bearing case and further as of on the pictures were useful to the denial defend- kill, determining an intent to ant that also on the wounds were on the body of Actually, the issue Judge malice. the deceased in the represented number as opinion dicta, said in Graves amounts testimony, medical and the officer previously as he making determined that the a material fact on a issue material pictures were admissible the absence of issue the case. proper objection. However, case In Whaley State, Tex.Cr.App., approval
has been cited with various a murder life case with a times, members many of this court so in- penalty imposed, three of the nude cluding the writer in the written of the deceased and two by him Craig, for this court in supra, as the automobile in which seated authority photo- for the introduction of large pools and which showed of blood were graphs occupies place now offered in proper the state over precedent, dicta, rather than juris- objection. The Court reversed this case in prudence. *7 opinion,
a unanimous
stating that none State,
329,
In
pictures
Cantrell v.
156
any
case,
Tex.Cr.R.
solved
issue in the
387,
highly
inflammatory
242 S.W.2d
a murder
malice
and
without
should
have been
opin
admitted in
The
appellant, deputy
case where the
evidence.
a
sheriff in
State,
ion cited Cavazos
Tex.Cr.App.,
v.
Nacogdoches County, killed a drunk while
State,
them as a
case
specifically
true
Borroum’s
overruled.”
body lying
showing
David-
opinion
Judge
on the bed and
was reversed
an
the bruises
body
upon
court
as he viewed them son
the failure of the trial
eye.
Judge
grant
special requested charge.
the naked
The court failed
a
exactly
to state
the basis
because
sustaining
the Morrison
in the reversal
concurred
trial court
admitting
photograph.
To
introduction into the evidence of
writer,
photograph
it is
photograph
clear that the
of the deceased.
solving
admitted because it aided in
Davis
165
308
v.
Tex.Cr.R.
disputed
issue;
is,
fact
the number
880, a murder case in which a life
S.W.2d
body
bruises on the
of the deceased.
imposed,
reversed
sentence was
the court
opinion
The
approval
cites with
opinion
the case in a unanimous
because the
Gibson,
supra; Ray, supra,
Cantrell,
confession was
trial court
admitted
supra.
opinion
Wooley
states that
v.
opportunity
did not
afford
an
State, 162
Tex.Cr.R.
285
218
S.W.2d
proof
jury,
make
the absence of
and Shaver
162
Tex.Cr.R.
as to the
surround-
facts
circumstances
S.W.2d 740 at
Wooley’s
best are dicta.
case
ing
taking
opin-
of the confession. The
was reversed for failure of the trial court
body
ion concludes: “The
to instruct
as to the force and ef-
depicting
bloody
condi-
fect of the exculpatory statements con-
body
tion
the floor and
ex-
should be
tained
the confession
Judge
Dice said
upon
prejudicial
cluded
another trial
in a
opinion:
unanimous
“Upon another
issue,”
tending
prove
trial,
no controverted
under the same
evidence,
or similar
citing
Shaver
Tex.Cr.R.
showing
bloody
condition
sible show I understand rule to be that a intent, fundamentally though gruesome inflammatory, malice and are un- is ad- Also, hereby disputed sound and missible are overruled. if it serves to illustrate a Alcorta, issue, supra, is modified to the extent whether it be the nature of the wounds, kill, longer regarded that it should be as au- intent to issue of whether thority holding killing are was with malice or without malice, bearing admissible voluntary as or was rather than ex- expressed by justified, any malice. the ma- cusable or The view or material other Wilkerson, jority supra, disputed of this Court issue. (wherein Borroum, supra, overruled pictures were admitted on the dis- anything the extent that if said in the Bor- puted killing issue whether the contrary to may roum case be construed as malice, charged, or was without malice. Gibson, Ray, supra, stated in rule disputed Such issue was submitted to the
supra) is rescinded. charge, court’s in accordance error, 1257c,
Finding judg- with no reversible Art. Vernon’s Ann.P.C. That pictures inflammatory, ment is affirmed. that the state introduced other evidence on the dis- puted issue does alter the rule. WOODLEY, Judge (concurring). judge concluding trial was not in error in pictures tending that the were admissible as opinion I agree prepared do not disputed to solve a issue. by Presiding Judge McDONALD but con- cur in the affirmance of the conviction and
the holding that the in evidence admission MORRISON, Judge (dissenting). pictures did not constitute reversible error. agree While I my brother McDON- ALD Court, including that this the writer experienced The learned judge trial early prepared for the Court did not admitting pictures err in under State, supra, Cantrell v. (1951), 156Tex. the rule in Ray stated Tex. Cr.R. has been far Cr.R. S.W.2d followed holdings concerning consistent holding in Gibson v. 153 Tex.Cr. the admissibility of of the scene of R. was re-affirmed the crime where blood abounds and of the in Alcorta v. Tex.Cr.App., 294 S.W. body deceased in murder cases are 2d 112. shown. agree I further that malice is no proper predicate for the introduction of opinions Reference to the in the cited such in cases where death does en cases will point disagree- reveal sue, but I am still agree unable to rule, ment was not as to the but whether affirmance of this conviction. I have ex or not there was a issue in the case amined this record with care to determine which the could exhibit tend to solve. if the pictures might introduction of the do not construe the cases which justified by appellant’s testimony, but have my come to attention as failed to find therein justification sufficient gruesome inflammatory is ad- for the- ghastly admission these lurid and simply missible in a murder case because pictures of completely this deceased almost alleges pic- the indictment malice and the decapitated. In fact show the work of may ture be of assistance to the state in imperfectly an functioning guillotine. n obtaininga verdict of murder with malice. *9 holds, If agree there be a case which so I At the time the colored were ad- that it should be overruled. mitted the testimony pathologist had challenged vigor- DICE, not had been nor he been Commissioner. ously cross examined. He had testified that again We have examined the record had fatal sustained four majority remain convinced that including wounds the neck wound which admitting court did not err in “ * * * literally left hanging the head body of the deceased’s side; loosely, attached to the appellant. of the completely front side severed.” In ad- Klevenhagen
dition this to Officer had tes- pictures showing nature and lo- The tified, any attempt part without deceased’s cation the wounds on the it, the defense to refute that deceased’s bloody appellant body and the hands of “ * * * throat was cut from ear to ear. clearly disputed issues tended to solve * * * barely It his head on the case. only thing The his head on when held record put We have also it on the stretcher that I examined light contention that it, my keep
take hand and hold it from judgment should be reversed because falling body.” Appellant off the had admit- sufficiently body of the deceased was not prior ted that he had cut the deceased person charged have identified as the pictures. introduction killed, required Ver Art. non’s Ann.P.C. It must be remembered that we do just have describing here another witness charged The indictment body condition of the killed Odum. Jessie J. but are dealing with medium here another Perkins, the first witness called W. H. proof. These are colored and black and night testified that on the white jury just handed to the person killing he saw with a before they retired to decide or whether “Jessie,” and whom he knew the name of die, pho- should live he later learned was Odum. Jessie tographs producers would make the he saw further testified that the next time hang Frankenstein films their heads dead, lying, on a slab Odum he was light These photographs Hospital, shame. shed no cut at Ben Taub throat across the chest. and three slashes issue in this case which fully developed point
had been where Deckman, Klevenhagen,. Deputy sheriffs jury acquit rational would and served the Knowles, testimony, throughout their purpose of shocking deep- sole so the dead- found referred to ly incapable were rendered as that Odum. scene of Jessie exercising deciding cool reflection in wheth- identify testimony was sufficient imprisonment er life or death would charged person as the the deceased proper punishment. been killed. respectfully dissent. rehearing is motion overruled. Appellant’s Rehearing Opinion approved by On the court Motion for