*1 552 following day appellant was arrested proof driving the Such
while truck. appellant’s guilt and
sufficient to show required support plea guilty, State, MacKenna v.
Art. V.A.C.C.P. 657; Mason
164 Tex.Cr.R. State, S.W.2d
v. 167 Tex.Cr.R. 321
591; Tex.Cr.R. Wall 641;
S.W.2d Foster v. 170 Tex.Cr. 458;
R. Morin v. judgments are affirmed.
Opinion approved by the Court. FOSTER, Jr., Appellant,
Charlie Lee Texas, Appellee.
The STATE
No. 39160. Appeals of Texas. of Criminal
March *2 6,1965 life, July judgment began
for on jury’s having been rendered verdict on pronounced, appeal and sentence notice of given August was on appellant The offense for which alleged and convicted was and shown tried been have committed on or about the March, day 25th which time appellant age. was under 16 The statement of reveals that the facts deceased, body of M. who reported missing, had been was found short- ly 26, 1963, after 9 on A.M. March pasture just Lane, off of in Brazos Wilcox County, Bryan. about 8 miles from There post body. was a cedar lying across his Appellant County came to the Brazos morning about 7:10 o’clock the next Jail Deputy and told Sheriff Fronterhouse that he was the one Mr. Tre- that had killed mont.
Sheriff Hamilton had the scene visited body and had seen a hat and other articles the immediate area and had taken charge post. response of the fence In Deputy call, Fronterhouse’s he to his went appellant office and talked to con- who fessed to him that he killed Mr. Tremont. Appellant’s version of the facts and cir- McVey, Elmer William Thornton, S. surrounding cumstances is shown Bryan, appellant. in the following testimony of Sheriff Ham- : ilton Cofer, Jr., Brooks County Atty., D. Wil- Vance,
liam R. County Atty., Bryan, Asst. “Q. What thing first that he Austin, and Leon Douglas, Atty., B. State’s you, told you as best recall? for the State. Well,
“A. he admitted to me crime, this killing. He told me where Mr. WOODLEY, Judge. picked up. Tremont had appellant charging indictment with “Q. that, And where was sir? murder Marion Tremont was John 25, 1965, returned on March at which time Sims, “A. On 23rd in Bryan. appellant age. was seventeen then told me that where hap- pened The trial which resulted in the convic- was on out country, appellant, punishment tion of the with as- and he every directed me turn to sessed at penitentiary confinement in the the scene of this killing.
[*] [*] [*] [*] [*] [*] “Q. All right, did he tell you how he say happened came back to “Q. what did town? And Lane where there Wilcox Yes. “A. body was discovered? “Q. jury not he told Tell the whether or there, they parked
“A. He said the car Store, stopped or you he at Nuche’s *3 they I believe he said crawled over way a store on the back? and the gate, went down to woods, of the went on edge and he me that he made “A. He told he did and ahead, got or behind purchase Mr. a there. way other,
one or the and as he * * * * * * came he fired at him with pistol. you any pur- “Q. tell Did he he made any downtown? chases store * * * * * * Now, “Q. Hamilton, tell Mr. did he he at the Guarantee “A. He said did
you how he Mr. Tremont? killed Store. “A. He did. you money he used “Q. Did he tell what purchases? to make these “Q. you jury Will tell the what he told you? He me he taken He did. told had “A. Tremont’s Thirty Mr. Dollars off of Yes, “A. sir. He said after he had part of body, had used and that he shot at him several times with the pur- money make these to pistol, pistol, he didn’t think chases with it. him, would shoot and Mr. Tremont * * * * * * had started back running toward purchases at After he made the “Q. car, caught he just him before and you tell he the Guarantee Store did got he to the fence where there is drove around or not he whether gate near, picked up a there and a in Mr. car? town Tremont’s post and cedar hit him with it. said he him remembered that he hit Yes, sir, mentioned fact and he “A. two or three times. He said he him, boy and that some hollered might more, have hit he but boy by called this name. did remember hitting him or 3 hap- what you then And did he tell “Q. times, and then straightened the he pened ? body out and left. Yes, sir, drove he that he said “A.
“Q. you Did he tell day time what there, compress car behind the that was? a tree he hit with it.” “A. He shortly said it was after he cross-examination, Hamilton Sheriff On picked him up. testified: “Q. And did he tell you he took Mr. boy “Q. made In the statement that keys? Tremont’s car you you, the reason did he tell down he Tremont that carried Mr. Yes, “A. sir. that pasture, the reason —or “Q. you did he tell carry And that he drove him to Tremont had asked Mr. Tremont’s Mr. car back to town? him down there? Yes, Yes,
“A. sir. “A. sir. daddy, and he did so kill his mother “Q. what was that statement? And through fear. to him about He said he had talked “A. girls.
some ex appellant’s jury rejected evidence is planation of the several “Q. to him on And had he talked their verdict. sufficient to sustain subject that occasions about same ? matter admitting not err The trial court did led to the which appellant’s oral confession ap- me that when “A. He told its billfold and pistol, the finding said, ‘Do proached Tremont he Mr. contents. I’m the one you remember me? you with about talking appellant was with fact that year ago,’ girls some or so Deputy when he came to out counsel just way that —it *4 the to him and to and confessed Sheriff mentioned one other time that was voluntary state his did not render Sheriff by Charlie Lee.” such portion The ment inadmissible. ad arrest was confession made after his he testified that The Sheriff further portion the of Art. 727 C.C.P. missible under appellant he had pistol said found the where provisions confessions excepting from its it, containing a thrown and found billfold which defendant in connection with the M. license and other Tremont’s driver’s circumstances makes of facts or statements a bearing cards his name and address as true, that be which conduce are to found appellant him. result of what told State, 150 guilt. to establish his Riddle v. Joseph Jachimczyk, conducted Dr. who 419, 829; Angel v. Tex.Cr.R. autopsy, 169; the described two distinct blunt 183, State, 150 Tex.Cr.R. temporal and lacerations over the left Gage v. 159 Tex.Cr.R. 263 S.W. parietal scalp areas of the of the deceased 2d 553. neck, which, he tes- and a broken either of Appellant’s complaint next relates to the tified, could have caused his death. during following incident which occurred post further that the cedar could testified the cross-examination Hamilton of Sheriff injuries.
have caused such you “Q. when he Did he tell was asked: him about bothering about Tremont Mr. behalf, appellant Testifying in his own wanting get girl him to a colored to take being present Mr. Tremont admitted when relations, he her down there for sexual did was attacked admitted that he confessed you tell that?” him, to but testified that the de- him get ceased told him that he had to The statement of facts reflects: no; girl a and he him after he went told pasture, point proceedings into the him “At the the as deceased told to, deceased, present hit who was deceased came over there and widow of Courtroom, arm; pulled spectator a rose him on the that he out the pistol seat, which car- from her and in a loud voice said: was loaded with blank tridges Then lie. a lie. He was and fired it about five times. ‘That’s a That’s up trying protect a when he said truck drove and a man came over to skin rapped gate, picked up post began liar.’ The Court the cedar that God damn order, through asked Tremont’s beating got Mr. Tremont. After he for Mrs. her, son-in-law, accompanied if he beating him, stranger got Mr. Tremont’s who could He assured keys them to control situation. car and billfold and handed could, and escorted Mrs. get in the the Court he and told him to (appellant) time, by this that he who was subdued go car and back town and tell to him or out of the Courtroom.” get it would (appellant) did or he birthday. cross-examination Wat then continued to fendant reached his 17th conclusion, its which time trial 237 S.W. judge son 90 Tex.Cr.R. jury instructed the disregard to the com-
ments and statements of the wife of the “However, hand, the in the case at deceased, and court was recessed for the committed the De- offense was when day. following day in the court’s only months fendant was and 3 appellant’s chambers counsel moved for time, adjudged a old. At that he was mistrial because of the incident. delinquent to juvenile and committed birthday, al- After his 17th Gatesville. complaint Assuming that later, he was indicted most two properly us, before failure to court’s murder, July 1965, was and on grant the belated motion for mistrial was life sen- brought to a trial assessed not reversible error. tence. The record reveals that on March “In Hultin killed, peti- after Mr. Tremont was 248, Judge Mc T. W. alleging tion was filed Donald, injustice an recognizing appellant delinquent was a child under stands could arise under the law as it having law theft from a “committed power prevent such oc states ‘that the person,” 1, 1963, April and on found judi legislative currence is a and not delinquent to be a child and committed *5 cial function.’ care, custody and control of The Texas pro- Youth Council in accordance with the Appellant’s contention that “It is of Art. visions 5143d Vernon’s Ann.Civ.St. in case violates delay involved this He was confined in Mountain View trial, speedy guarantee of a Constitutional Gatesville, The agency School at an of rec- is the ultimate that the Constitution Council, Texas Youth until after he was in- anything to Legislature, and ord of the dicted for murder when a bench warrant n contrary is unconstitutional Bryan. was issued and he was returned to of no force and effect. therefore Appellant contended in his motion for by recognized the Court “As process trial that he was due new denied case, some- must be a limit Huitín there period in of of law that the state waited a position that this Appellant’s It where. is years bring- charging two before him and cir- under these limit has been reached ing him to trial. cumstances. appellant’s original Point 3 of brief reads n affirmatively case “The record in this part: in re- did not defendant shows that due denied trial and was a fair ceive Constitution, 1, “The Texas under Art. & law, verdict permit the process of and to 10, grants speedy’ public to an accused ‘a would case to stand judgment in this passed wording trial. This has been on him.” injustice to great be a many question times when the has been ‘speedy’ concerning raised what the term Court, includ decisions of this It un The
means. is settled it means no construing the appellant, State, Tex.Cr.App. by cited delay. ing those due Wood v. appellant 605; at the time 307], statutes effect Tex.Cr.R. 349 S.W.2d [171 tried, gave notice of indicted, State, Tex.Cr.App. convicted Elliott Tex. v. [168 not effect that it was appeal, are to the 218; 140], 324 and others. Cr.R. of years a child is 17 error to wait until determined that two month It has been a a an adult prosecute as detóy permissible age to is when the offense 15 he was under when de murder committed before the was committed two months
557 children delinquent certain “providing that at age. age the defendant years of crim- penal laws and subject to the be time of time the trial and not at the shall they if prosecution the same as State, inal 153 v. the offense controls. Roberts 1016; adults.” 308, Wood v. Tex.Cr.R. 219 S.W.2d 605; 309, State, 171 Tex.Cr.R. 349 S.W.2d portion of amended Section The above 282, Perry State, Tex.Cr.R. 350 S.W. purpose intent of conforms to 21; Tex.Cr.R.
2d Martinez v. emergency expressed in the Legislature 443, 929; 350 S.W.2d Hultin is present law that the “The fact clause: 248; Lopez v. Tex.Cr.R. delinquency juvenile inadequate to curb ** emergency creates an this State legis- House Bill enacted at the last to understand find it difficult We lature, Art. amending sections of certain amended provisions 6 as of Section further p. (Acts Leg.1965, 2338-1 V.C.S. 59th reads: which It 577) approved Ch. June August until did not become effective (16) no child under sixteen “[A]nd time hence was not in effect at the commit- the time the age at offense this case was tried and decided in the trial any prosecuted as an adult ted shall be court. by unless the Juve- later date transferred Court, offenses com- nile and all such provisions Art. added to 2338-1 by not so mitted children transferred concerned which us to such extent that disposition subject shall be case was re-argued re-submitted and are only.” barring might those which be construed as any the trial of defendant under as an adult If, statutory construc- under the rules of any upon conditions such showing that tion, these any way construe there is age defendant was under 16 notice provisions so as to conform to the time the offense was committed. If *6 purpose intent Caption, and the and the to so, the be decisions of Court in the Cap- Legislature by indicated the of the as cited, cases above as to such a defendant clause, emergency and leave tion and the years age under 16 of at the time com- contradictory, vague and statute that is not offense, mitted the and have been overruled uncertain, find it. been unable to we have any neither this nor future conviction of age such a defendant regard without to his Legisla- Caption gave notice to the at the time of his trial as an adult can public Bill 444 ture and the that House stand. delinquent chil- provide that certain would penal and subject be to the laws dren shall portion One of Article Section 6 of they prosecution as if criminal the same by 2338-1 as Bill Acts amended House adults, the act would were but no notice that 1965, p. Legislature 59th Ch. and provide 17 that male defendants over provides for the certification 16 of a child years no age 18 of would females over years age by of or older the Court Juvenile exempt subject but would be longer be to provi- proceedings for criminal with the prose- penal and from such laws criminal age years sion that no child under 16 of age they years 16 of cution if were under at the time the is committed be offense shall they committed crime. at the time the so certified. Caption gave portion of of the Act notice that That of the amendment provides “providing it transfers of certain 6 of Art. 2338-1 which Section years age jurisdic- (16) cases in of Courts from the “no child under sixteen Juvenile jurisdiction tion of committed shall Courts to the at the time the offense was Juvenile any date prosecuted of the other courts in as an adult at later this State” and be 558 “ * * * Court,
unless transferred by
defendant,
age
the
that the
then
Juvenile
all
by
such
committed
offenses
children
was committed to
Texas Youth
the
subject
not so transferred shall be
dis
charge
to
Council on a
of
theft from
by
position
only,”
person
testimony
Court
so
under
is
admitted
Juvenile
indefinitely
Court,
such
showing
framed and of
doubtful
the evidence
Juvenile
understood,
construction that it cannot be
that
in cash and
automobile
an
$30.00
either from the language in which it is ex
from
taken
M. Tremont.
J.
pressed or from some other written
of
law
“The defendant
remained Gatesville
state,
regarded
wholly
and must be
under
Youth
the control of the Texas
inoperative.
P.C.;
Art.
Ex parte
6
shortly
Council until
became
after he
Marshall,
Tex.Cr.R. 83,
* * * * * * Having prosecution decided County of “The District Court Brazos appellant of the as an adult for the murder any jurisdiction the de- never assumed of of M. Tremont by is not barred reason of fendant until the defendant became House Bill we next consider whether age, and the Juvenile Court of prosecution by such ap barred reason of any County, never assumed Brazos Texas pellant’s having placed been held jurisdiction whatsoever the defendant custody juvenile delinquent pursuant as a upon there was any charge If murder. his commitment upon against any charge ever murder a finding delinquent that he was a child age prior reaching to his defendant person.” he “committed theft from a it, and of 17 was not aware of this Court been any, if have charge, such would No contention ap- has been advanced by *7 Court, express this against the Orders of pellant’s appellant’s prosecu- counsel that capacities.” acting in both tion as an by adult is barred reason of custody commitment and in the Juvenile trial of The adduced evidence Court proceedings. ap- In fact counsel for certified facts appellant murder and the for pellant argue that the items found aas in the presided by Judge who District appellant’s result “may oral confession proceedings and also Court have connected him with the offense of from distinguish case murder trial person’ 'theft from a (for) which Defend- ’ Tex.Cr.App., v. Garza originally ant was (in tried the Juvenile appellant’s 36, fact for the account Court proceeding) but in no wise in- no made appointed counsel have able court volved in the murder.” due deprived of he was contention that supplemental 14th Amendment to transcript process The under the filed in this under the United States Court after the been set Constitution of case had for re- in v. submission this Court Garza contains a certification the decision of Hauck, F.Supp. judge: Sawyer trial v. or under Court District wherein United States SELLARS, Appellant, Calvin Texas, in a District of Western aside the post proceeding, set conviction Sawyer, parte Ex holding of this Court Texas, Appellee. The STATE Sawyer and found that S.W.2d 38620. No. process. denied due was Appeals of Texas. of Criminal Court judgment is affirmed. Dec. 1965. Rehearing Denied Feb. MORRISON, Judge (dissenting). Rehearing Denied Motion for Second March boy has underprivileged This colored law, process and the been denied due affirmatively it.
record in this case asserts say should no wise discredit
What I judge and considerate trial
conscientious boy fifteen
who tried this case. This was three old when the of- months presently
fense for which he stands con- committed
victed committed. He was Gatesville under admitted be- evidence juvenile showing
fore the court that he had
taken from cash and an automobile $30.00
M. un- and was there confined til he was returned seventeen. was then Bryan, given sen- again tried a life
tence for Tremont at the time M. J.
he took the and the automobile. $30.00
In Doggett v. speaking (1936),
through Presiding Judge Morrow in a well opinion
considered said: instance, present proof
“In the is that, appellant’s
conclusive convic- murder,
tion for convicted of the upon
same transaction and the same evi- upon previ-
dence which he was
ously robbery convicted offense of the
with firearms.” contrary opinion majority of the
to the rationale of this Court in Garza holding and the
the United District Court for States Sawyer District of
Western Texas
Hauck, F.Supp. parte Ex vigor
I dissent with I did in Tex.Cr.App.,
Martinez, parte Sawyer, Tex.Cr.App.,
Ex