*1
lady in
young
ON APPELLANT’S MOTION FOR
the consent of
with
No issue
REHEARING
apartment.
of the
freely
being
giv-
as to this consent
raised
Rehearing denied.
found.
en and the court so
ROBERTS, Judge (dissenting).
unnecessary
us
actually
It would
for
matters
legality
to determine
majority
appellant’s
overrules
fully
raises
since he testified
opin-
rehearing
motion for
without written
officers,
about his encounter with the
ion.
search
and the officers’
of his automobile
agree
majority’s
I cannot
dis
visit
in Batiste
Recently
residence.
position
149,
of the extraneous offense issue.
State, Tex.Cr.App.,
v.
we
464 S.W.2d
subsequent
extraneous offense fails
said:
admissibility
to meet
the standards
es
upon
pass
“We need not
legality
State,
tablished
this Court. See Ford v.
this search because
testified
of his automobile the other
guns were on the back seat.” Baity
In Tex.Cr.App., v. 455 S.W.2d
305, we said: Appellant, CARAWAY, Thomas Franklin question need
“We not decide that appellant, testifying in his own be- half, related on direct examination that Texas, Appellee. The STATE of he had stated to the officer he had a No. 44187. money possession box in his and that had Piccadilly come from the Cafeteria. Appeals of Texas. Court Criminal complain cannot of the im- 23, Nov. 1971. proper admission of testimony which he Rehearing 17, voluntarily later Jan. offers himself and ex- Denied 1973. pounds upon.”
See also Parker Tex.Cr.App., 712, and Weeks v. Tex.Cr.
App., Bradley 417 S.W.2d
Tex.Cr.App., Jones State, Tex.Cr.App., (1972).
Appellant’s remaining grounds of error
are overruled. judgment is affirmed. *2 boys, “I
ton. The told the two queer.” The will show how to point trio then went down the street to in a where the deceased was seated car. approached the deceased and *3 conversation ensued. The deceased offered five to the three who dollars one of permit sodomy. him to oral would commit the boys got The three into the car with the group deceased. The then went to de- apartment, stopping way to ceased’s on the buy the left the When deceased car beer. beer, buy to other appellant told the boys going de- that he was to knock the time, get money. At the ceased out and appellant a butcher knife. carrying was apartment, appellant at and Once Hill, boys, stripped their un- one of the to began playing with derwear. The deceased appellant’s penis. oral He also committed boys. sodomy either or three of the on two go the room to When the deceased left restroom, appellant cut a Vene- Moore, Lynn Hensley, Hous- A. C. tian blind knife and cord with butcher James ton, appellant. Also, at hid it under a on the pillow bed. time, appellant stated that he this Phyllis Vance, Atty., Bell Dist. Carol S. de- going kill the decedent. When Attys., Ray Montgomery, Asst. Dist. and room, in- ceased returned to the Vollers, Houston, State’s D. Jim bed, him to lie stomach on the duced on his Austin, Atty., for the State. going to have pretext that he was the de- anal with him. When intercourse OPINION down, top of lay appellant got on ceased pillow for then reached under the him. He ROBERTS, cord, Justice. placed it around deceased’s choking appel- neck, began him. appeal This is from conviction for a cord, Hill lant held one end of aforethought. Trial murder with malice other. before a with the jury, assessed at death. ensued, struggle and the three fell A hitting the began Appellant the floor. then error; eight grounds asserts chin, he was saying under the that deceased grounds six relate to the court’s neck. The trying to break the deceased’s and two to the confes- through began looking got up and being sion admitted into evidence. house, still leaving Hill the drawers alleged appel- The indictment appellant then holding the deceased. lant, 29, 1968, “did with on December time, Hill, but Webb relieved aforethought Lee Webb kill Nathan dead. choking him with a cord.” taking group apartment, left the some containing tools, barber brief case met The evidence showed au- the deceased’s keys and the money, in Hous- in front of a diner young boys two
]09 ex-pro had been an car, appellant “A He told me he They tomobile. left in see, didn’t, if I I ap- wrestler, would returning to hotel and Hill where or form hurt me some pellant’s staying, the other he would girl friend was other, me. take care boy been let out of the car earlier. having go to you might you tell him “Q Did Appellant joined his friend and drove girl on him ? police and tell including a motel where points, to several the barber tools sold. were go- nothing "A tell him about didn’t I said, ‘If ing police, but he to the testified in own behalf. they will go police, all do killing deceased, but de- admitted will do is on me and I set bond doing intentionally. He contend- nied so get later.’ you sooner or out and According to ed he killed self-defense. *4 companions testimony, his when his two “Q Said what? restroom, go left the room to kind, they a pill a of some “A do gave said, deceased him ‘All set will anal inter- and ordered to have bond on me and I will out and ” on, get you refused. later sooner or course with him. later.’ harm bodily to do deceased threatened n n jf; n jji Decedent he would consent. him unless restroom, time at which then went to the “Q Lee you afraid Nathan Were of put under the it appellant cut the cord and Webb on December ? pillow. Yes, sir, “A was. I in on was based case chief State’s you going hurt “Q Did think was girl friend, who testimony appellant’s of you? coming going and testified to his as her, testimony he made to statements Yes, “A sir. appellant, boys of one of was with who going to you he tell “Q Did he confession. you?
hurt his first contends Yes, “A sir. erred ground of error that the trial court your question in “Q There was no charge on the law of murder failing mind? Basically, appellant con without malice. murder without the issue of
tends that No, “A sir.” testimony con by raised malice was to him cerning threats made Ann.P.C., requires 1257c, Art. Vernon’s resulting of mind. state deceased mur- charge on the law of testimony as follows: His present the facts “where malice der without to com- told “A He me I would have without defines murder It the issue.” sodomy with him. mit malice as: n * you. us he told “Q exactly Tell what committed homicide voluntary “a sud of a influence immediate under the * ** “A I have to He told me would adequate arising from passion den anal intercourse him.] [have cause such cause, is meant which degree produce him ? you commonly tell “Q did What as would resentment, in a or terror rage, anger, want to. “A told him I didn’t I temper sufficient ordinary person of reflec incapable cool mind happen render the you did he tell would “Q What * * tion you if didn’t? charge do not We feel that a on the law preclude tive robbery would charge self-defense, murder without malice was warranted on for under the facts of this right case. have forfeited his of self-defense committing robbery, State, Dickson charged jury
The court that: S.W.2d 20 (Tex.Cr.App.1971), and cases “ * * * ¡f therein cited. y0U from the should believe beyond evidence a reasonable doubt that on the law of self-de * * * while in the act Defendant required fense was not because there was preparing executing the offense or no killing, evidence that at the time of the aforethought robbery, did with malice attacking appellant, deceased was or him by choking kill Nathan Lee Webb executing the threats he made. * * * you find him with a cord will 1224, V.A.P.C., Art. Gonzales v. guilty of the offense of murder with 859 (Tex.Cr.App.1968); ders Hen aforethought. (Tex.Cr. App.1966); Tex.Cr. you “But do not so find and believe if Johnson R. 289, 319 (1958); S.W.2d 720 Herrera v. beyond from the evidence a reasonable doubt, Tex.Cr.R. you if have a reasonable doubt S.W.2d 706 or (1953). thereof, then will find Defend-
ant,
not
Caraway,
Thomas Franklin
guilty.”
complains
also
that the
court
in charging
erred
jury
the
under Art.
Thus,
the instructions of
under
42,
V.A.P.C.
claims that
the indict
ap
charge, if
that
jury
the
not believe
did
alleged
ment
only
with
murder
malice
pellant
either
killed the deceased while
aforethought,
killing
not an
com
accidental
preparing
committing
for or
the offense
preparing
executing
mitted while
or
a
for
robbery, they
but
would have no alternative
felony, and that
the
therefore
indictment
hand,
acquit.
they did
to
On the other
if
failed to inform him
as
accusation
believe that he killed the deceased while
he needed to meet.
preparing
committing
or
the
of rob
for
act
for
bery,
necessity
then there would be no
This Court has held that the
need
State
charge
the
murder without
on
law of
plead
not
its evidence in the indictment.
malice,
for the
of rob
affirmative
State,
223,
Silva v.
112 Tex.Cr.R.
15 S.W.
possi
bery
negate the
jury
the
State,
(1929);
2d
89
1046
v.
Tex.Cr.
Jones
bility of murder without
See:
malice.
355,
(1921).
R.
231
122
S.W.
State,
(Tex.Cr.
Dickson
463
20
v.
S.W.2d
State,
;
Tex.Cr.App.
App.1971) Leza
149
v.
proper
This
held that it is
Court has also
448,
v.
(1946); cf. David
160 Tex.Cr.R.
272 S.W.2d
State,
234,
did
225
Appellant complains the court
Smith
154 Tex.Cr.R.
S.W.
v.
State,
Tex.
charge
McElroy
not
2d
134
charge,
(1949);
on self-defense. The
v.
worded,
445,
Fur
necessity
(1938).
as
would obviate
Cr.R.
HI 643, State, Tex.Cr.R. Hoskins only mur alleged fact the indictment earlier, discussed (1933). As Hodges 160Tex. der with malice. In by the evidence. the issue is not raised 579, (1954). Cr.R. event, charge did define the court’s supra, portion In Smith aforethought. malice Art. based on charge the court V.A.P.C., appeal, approved on which was by his Appellant complains fifth charge portion was identical with erred in ground of error that the court in instant case. in the law to the facts not applying convict, that, in order to structing jury court, ap in Further, it appears that they through that he killed acci must find charge in the did plying the law to the facts dent or mistake. charge not under Art. V.A.P.C. set forth charge (the portion relevant is writing in object did not required that opinion) in this earlier ground court as charge on this trial convict, (1) jury order find 36.14, Ann. required Article Vernon’s the defendant committed while killing was failing Any charge error to so C.C.P. executing the offense for or preparing preserved. Baity 455 S.W. not and, committed robbery (2) Corbitt v. (Tex.Cr.App.1970); 2d 305 Thus, the bur aforethought. with malice (Tex.Cr.App.1969). greater than would den on the State given actually placed a heavier charge as required ordinary murder either under have been burden on the than would State element, robbery, (an had malice additional requested by ap charge case under 42, V.A. proved), to be or under Article pellant appeal. given re charge (the aforethought). P.C. element malice defined, quired aforethought, as not Such a to be er has been Thus, error, if any, was not accident. *6 (Tex. ror. Cook 211 224 Therefore, not be fundamental. need Cr.App.1948). by Court, considered this Nielson v. (Tex.Cr.App.1969). case, fairly In the instant the indictment apprised appellant charges against of the ground of error Appellant’s ninth Further, by him. evidence offered in sub the trial court erred complains that State showed that he kill the deceased did aforethought of malice mitting issue indictment, alleged by on the date in the guilt phase of the trial. jury to at the him choking with a cord. The no the issue of malice has He contends that only deprive appellant court served to guilt, only is issue but bearing on the which, theory, aof defensive to under Art. question punishment, to and relevant 42, V.A.P.C., he was not entitled. V.A.C.C.P., the 37.07(2), under Art. only issue malice should submitted Appellant complains in his fourth phase This of the trial. at ground of error that the court in not erred merit. contention is without that, charging jury they unless believed appellant to how see we fail beyond he a reasonable doubt that by procedure followed. harmed prompted and acted with afore thought, they him of could not convict an higher complains his last two Appellant
offense than without malice. murder Appellant 1257b, grounds into evi contends that Art. of the admission V.A. of error of the P.C., requires charge. such a Court his and This dence of confession written has know held that Art. 1257bmust be construed trial that he findings of the 1257c, voluntarily ingly, intelligently, connection with and that and waived Art. Art. applies only attorney 1257c right present when the issue of mur his an dur have ing der interrogation. with malice raised the evidence. his custodial warning appellant attorney contends that the which he was called an and talked with given by magistrate soon after him attorney his arrest for about five minutes. The 15.17,V.A.C.C.P., did comply not Art. advised not say anything, with but magistrate for the reason that the did not stated that he decided to make present “any him filed there- affidavit statement nevertheless. The officer contends, therefore, told appellant, referring with.” He lawyer’s advice, confession inadmissible because “I have told would be could that.” Sev- agree. this not eral failure. do members the news media pres- We were ent at the time the given, confession was (Supp. Art. 38.22(1) V.A.C.C.P. (b), and one of hearing them testified at the 1971), provides proper warnings by that the on the testimony confession. His was simi- magistrate person taking either or the lar to interrogating that of the officer. the confession are sufficient to make the Easley confession admissible. See Appellant testified that he was extreme- (Tex.Cr.App.1970); S.W.2d 490 Eas ly tired at signed he time the confession ley (Tex.Cr.App. and signed that he it so that he could be case, 1970). In record indicates get cup allowed to of coffee. stated requisite warnings given by that the were that he did not realize the content and the officer to whom statement was meaning of paper signing. he was given. State offered evidence contradicting this
testimony, including testimony of a tele- that the trial contends vision appellant appeared newsman that court was justified that he alert, wide awake and that he was allowed knowingly, intelligently, voluntarily coffee, freely to move about right attorney pres waived his to have an and that he from be- read the statement ent during interrogation. fore signing it. The record reflects trial court Appellant’s attorney at the time of arrest hearing extensive the issue of testified that jail he at about went confession, voluntariness requir- as arrest, midnight on the date of but that ed Denno, 378 U.S. Jackson was not to see allowed until S.Ct. (1964), L.Ed.2d Art. about 2:00 a. He then allowed to m. 38.22, V.A.C.C.P. *7 see appellant. the The de reason for the lay shown, is not but there was no evi
Briefly, we will summarize the circum- appellant dence that was interrogated dur surrounding stances the arrest and confes- ing period, the this or that he was denied sion. right to the during consult with counsel p. was arrested at about 9:30 interrogation, if he so desired. m., 5, January At 1969. the time of ar- the evidence that showed he allowed was rest, appellant given warnings pre- the was to consult making with counsel before his V.A.C.C.P., 38.22, scribed Art. and Mi- confession, despite warning and that the Arizona, 436, randa v. 384 U.S. 86 S.Ct. counsel, his to make chose the statement. 1602, (1966), by 16 L.Ed.2d the arrest- Considering presented the evidence which ing po- then officers. He was taken the appellant cognizant showed that was lice station where he was taken before a acts, counsel, and that he was allowed we gave magistrate 'him again who the warn- support find the evidence the sufficient Thereafter, ings prescribed in Art. 15.17. See, findings. court’s Hancock v. jail. in placed Easley (Tex.Cr.App.1970); S.W.2d 36 (Tex.Cr.App. m., appellant At about 2:00 a. was taken 1970); McCandless v. jail by again out of He an officer. confession, making (Tex.Cr.App. 1968).
warned. Prior to
H3 ordered to show that his trial is reformed is Appellant’s main contention life. he did assessed at because confession is inadmissible con- intelligent waiver. not make rais- considered the contention We have lawyer tends, by fact that his virtue ed in his brief on motion filed silent, his subse- remain warned him to that fully rehearing and find that same was intelligently quent was not waiver properly disposed discussed disagree. If this knowingly made. We opinion. original Court’s rule, warning given to a then a were effectively negate by lawyer client judgment as reformed is affirmed case, subsequent In this rehearing waiver. motion for support clearly evidence sufficient overruled. knowing- that court’s Opinion approved by the Court. voluntarily ly, intelligently, and waived
presence lawyer. Appellant of a had been ONION, for the reason J., P. dissents times, arrest, warned before the several at State, supra, stated and Stan- Whan magistrate, interrogation, at ley 43,907, (No. lawyer wording and in the of the confes- 12-6-72). testimony sion itself. State’s alert, that witnesses was he was read from confession, and was not coerced. From circumstances,
all we conclude
findings supported by were the evidence. judgment is affirmed.
OPINION ON APPELLANT’S MOTION Billy ROBERTS, Appellant,
FOR REHEARING The STATE of Texas, Appellee. DAVIS, Commissioner. No. 45307. herein, After opinion Supreme Appeals of Texas. Court Criminal Court the United States overruled 15, prior holding of this and other courts in Nov. 1972. Georgia, 238, Furman v. 408 U.S. 92 S.Ct. Rehearing 17, Denied Jan. 1973. 2726, 346, 33 L.Ed.2d and in Branch v. Texas, 2726, 408 U.S. 92 S.Ct. 33 L.
Ed.2d when it effect *8 may
death penalty under assessed present
our statute. Smith,
The Honorable Preston Governor Texas, acting upon the recommendation
of the Board of Pardons and Paroles 14, 1972, September
Proclamation dated
has commuted the in this cause imprisonment.
from death to life
As a commuta result Governor’s authority Tex.
tion and of Whan v.
Cr.App. judgment