Harrison v. State
556 S.W.2d 811
Tex. Crim. App.
1977
Check Treatment

*1 weight appeal, on it duty is nevertheless the of this Court to examine the evidence and to determine if bail properly was denied. Hammond, Ex parte Tex.Cr.App., 540 328; Derese, parte Ex Tex.Cr.App., 540 S.W.2d 332. witness for the State testified af A

ter had been arrested and re $10,000.00 leased on a bond he appel heard lant appellant’s talking wife with Hank Worley about Worley a statement had signed. Appellant told Worley gave if he any testimony against appellant that would hurt him on this case “would have something done about it.” Appellant also lawyer said his him good told he “had a get chance to to see old Sparky.” We cannot conclude that this is sufficient proof to show the is evident that a jury would required questions answer the sub- 37.071, V.A.C.C.P., mitted under Art. affirmative. and compare parte See Ex Kreimeyer, Belton, appel- James H. Davis, Tex.Cr.App., 542 S.W.2d 192. judgment of the trial court denying Caldwell, Jr., Atty. Don S. Dist. and Rich- bail to the appellant is reversed. Bail is set White, ard W. Asst. County Atty., James L. $55,000.00. in the amount of Geren, Prosecutors, Bradley Sp. and L. L. Groesbeck, Atty., Jim D.

Austin, for the State.

PHILLIPS, Judge.

Appeal denying is taken from an order application

appellant’s for writ of habeas corpus refusing appellant’s application Benjamin HARRISON, Appellant, Albert Appellant for bail. stands indicted for the capital offense of murder. Texas, Appellee. The STATE of setting Without out the facts in de No. 53245. commenting sufficiency tail or on the evidence, agree State met its Appeals Court of Criminal of Texas. establishing proof burden of jury evident a would return a Oct. However, guilt. the State must also intro that a jury duce evidence would return

findings require which would a sentence of Wilson, parte Tex.Cr.App.,

death. Ex

S.W.2d 310. judge

While the decision of the trial proof was evident is entitled to

PHILLIPS, Judge.

This is an from a conviction for penal murder under the former code. Art. 1256, V.A.P.C. Punishment was assessed years’ seven confinement. 16, 1973, appellant

On June was arrested charged Daisy Tay- with the murder of lor at During the home of Robert Mouton. trial, it was established that the de- ceased, appellant, Landry Janette present Robert Mouton were when the shooting occurred. Mouton testified all persons four were in the bedroom of his apartment and that he started to leave the room he heard a shot. He immediately appellant turned and observed the with a gun in pointing his hand at the deceased. The testified that while he had apartment evening, been in the most of the apartment get package he left the cigarettes. He that he first stated learned when he shooting returned from the Then, objection store. over and after a hearing presence jury, outside the prosecutor was allowed to ask if, during his ride after his arrest and to the station, police police he told officers that he cleaning gun had been and it accidental- ly discharged, striking Daisy Taylor. Ap- pellant making denied such a statement. Airhart, The then recalled Officer State testified, objection, without appel- who told him and the other officers that lant cleaning gun while he had been it had accidentally fired and struck the deceased. Appellant contends that this statement and, such, the trial was a confession allowing testimony court erred in concern- ing the statement. Art. V.A.C.C.P. State, however, argues in its brief “exculpatory” the statement made was the ambit of Art. did not fall within decision in Butler v. within this nor Court’s (Tex.Cr.App.1973). 493 S.W.2d 190 Beaumont, Jr., appel- Sparks, James The decision outlines the extensive 38.22, pointing history case behind Hanna, and Paul E. Ña- whether “ex- Atty. Dist. the conflict in the cases as to Tom Beaumont, man, Jim D. statements are included within Atty., culpatory” Dist. Asst. Butler, spe- Austin, our statute. In Atty., for the State. confession

«13 pendent Art. 38.22 em- cifically declined decide if in the absence of the deciding exculpatory statements. braced jury as to whether the confession or admissibility of in that the statement statement was made under voluntary case, we held: conditions. If the confession or state- been found impeach- ment has to have been volun-

“The oral statement used for *3 held tarily not an It was made and mat- exculpatory ment was one. admissible as a not, hand, fact by on the other one that was ter of law and the court in a incriminating, standing hearing alone. It was an in the absence jury, of the the facts, acknowledgement of subordinate must enter an stating court order its guilt. with findings, colorless reference to actual which order among shall be filed used, however, It was as a direct attack the papers the of cause. order shall Such appellant’s testimony and to show upon to the jury not be exhibited nor the find- And, testimony in that such was false. ing thereof made jury known to the in sense, it inculpatory was oral testi- this any Upon finding by manner. the the exceptions not within the mony any of judge as a matter of law and fact that oral to confessions or state- pertaining the confession or statement was voluntar- and, being by law within ments decisional made, ily pertaining evidence to such statute, of the it was neither the ambit may jury matter be submitted to the and for original evidence or admissible jury it shall be instructed that unless the impeachment.” page Butler at 196-97. beyond believes a that reasonable doubt or the confession statement was voluntar- decision, illustrated Butler by As the made, ily jury the shall not consider presented here is not con question the any purpose statement or confession for by labeling the of a statement as trolled any nor evidence obtained as the result or The is inculpatory exculpatory. either any thereof. case a motion to where whether circumstance sue is fact or the suppress statement or confession has in an oral an ac contained statement of been filed and evidence has been sub- by may be used the as a crimi- cused State issue, mitted to the court the on this inculpatory him. against native or fact may court within its discretion reconsider is, essence, the of our con purpose in his the such evidence statute. fession or voluntarily statement confession was purpose “The and of this statute is effect made and the same evidence submitted to using prevent prosecution the from to court the to hearing the on the motion the against testimony the accused the suppress shall be part made a having him a ver under arrest to officer being record the same if it were made accused which by bal statement the However, presented at the time trial. guilt.” seeks to his prove the state use to or the be enti- the state defendant shall 545, 197 Dover v. S.W. Tex.Cr.R. present any new on the ‘tled to evidence (1917) (Concurring opinion by state- issue of the voluntariness of the Morrow). Judge prior or confession to the court’s ment In the instant the oral state ruling stating and its find- final order by was introduced ment added.) ings.” (Emphasis negative his de destroy and State ascertainable, Legisla- readily As is incriminating alibi and is fense of therefore a in the stat- ture did not draw distinction The in the nature confession. evidence of a inculpatory exculpatory ute between within appellant’s clearly falls statements, rather, prohibit sought but spirit if not purpose of the statute incriminating. which are all statements very letter within 38.22. language provides: statute plain interpretation applied This was the decision, Legisla- although where is raised as Butler question “In all cases it spoken question, or have to this of a confession ture could to the voluntariness appellant’s at the an inde- not done so time of the court must make had trial. It presumed Legis- must be that the Since lawyers and trial judges have relied approved interpretation. upon lature previous this It our holdings for many so Legislature, years, the function of the this this will writer follow those cases Court, wording to amend the until cases are Art. 38.22.1 tried under the new provi- sions of Article herein,

For the judg- reasons stated ment is reversed and the cause remanded. ODOM, Judge, dissenting. stating my grounds dissent, Before DOUGLAS, Judge, concurring. and without excessive emphasis, I call at many For years, this Court has followed tention to one statement in the majority by

the rule that statements made one while opinion may lead some to misconstrue under arrest are not admissible even though opinion respect. in one Although they were not the result of custodial inter- majority state that Officer Airhart testified *4 State, rogation. v. See Butler 493 S.W.2d regarding complained the of statement State, (Tex.Cr.App.1973) 190 and Garner v. objection,” “without this should con not be (Tex.Cr.App.1973). 464 S.W.2d 111 These holding 38.22, strued as that Article V.A.C. predecessors cases many of their have C.P., issues may be raised whenever there is uniformly been followed. Under such deci- objection. no majority point also sions, the result of this case is correct. The objected that appellant ruling a secured so majority many years notes that after of in a hearing presence outside the of the uniform the statutory Legisla- construction jury when the matter first arose. The issue change ture and not this Court should the was preserved 40.09(6)(d)(3), under Article rule. V.A.C.C.P. Legislature Apparently, the has done I my grounds will now state for dissent- that, 1977, 348, 5, because ch. Tex.Laws Sec. ing majority’s disposition to the of the issue 936, 38.22, amending at Article V.A.C.C.P. upon judgment which the is reversed. (effective 29, 1977) August has rendered ground In his second of error appellant inoperative statutory the construction in contends the court admitting trial erred in cases. Butler and Garner over timely objection prior a statement 38.22, amended, custody. made while 5 of as in Section Article was a volun- teered oral provides: exculpatory now statement af- made ter warnings his arrest and of constitutional precludes in “Nothing this article the ad- rights, purpose and offered by mission of a statement made the ac- impeaching appellant’s alibi defense and his trial, at a open cused in court his before having denial of made the ex- volunteered an grand jury, examining or at trial in culpatory statement. No issue of voluntari- compliance 16.03 with Articles and 16.04 1 case, and, present although ness is this code, of this or of a statement that is the statutory by no or case authorities are cited offense, gestae or res of the arrest appellant, apparently he relies on Art. 38.- does not stem or a statement that from 22, 1, exculpatory Sec. V.A.C.C.P.2 The voluntary or of a interrogation, custodial confession, statement a is not and therefore statement, whether or not the result of 38.22, is not within the ambit of Article Sec. custodial that has interrogation, a bear- 1, supra. ing upon credibility accused witness, State, 190, a or of other statement In Butler 493 S.W.2d law.” may (Empha- be admissible under Court a similar confronted situation. case, added.) sis after a review of the legislative 38.22, 3, question 1. 1. We do not here address the of how Cf. Secs. and V.A.C.C.P. 38.22 the amendment to Art. affects our hold- 1977, ing Legislature, p. 65th significantly herein. See Acts changed by 2. This article was Acts 935, 29, 348, August 348, ch. effective 1977. p. Leg., 65th ch. 935. The amend- apply to this ment does not case.

«15 statutes, history the confession the Court while he was cleaning gun it accidental- a the legislative poli- reached conclusion on ly discharged, striking the deceased. Today cy underlying those acts: the question is again squarely presented, of

“Thus, legislature has made a stat- whether exculpatory an is within utory proof determination that of extra- ambit of Article Sec. judicial oral confessions while made in We should wholly hold that a exculpatory custody (Em- generally are unreliable.” one in this is State, Butler v. added) phasis confession, not a and overrule Butler v. 193. S.W.2d at State, supra, to the extent of its conflict Butler also stands for this second signifi- with proposition. It is not necessary to proposition: cant upon enter lengthy discussion of why an seventy-five “For over years, the law in exculpatory statement is not a confession or confession, Texas has been that a inad- of why a denial is not an admission. That chief, case in is missible one plain is not the other is from the words. purpose admissible for the impeaching If a explanation desired, detailed one may an accused as a witness in his own be- State, be found in Whorton v. supra, and Butler v. added) (Emphasis half.” State, Mason v. supra, both of which are State, at quoted length in the opinion Judge is still propositions, For these two in Dover v. Prendergast 81 Tex.Cr.R. authority.3 sound 545, 197 S.W. 192. Article *5 Beyond these two firmly established supra, predecessors, and its by the very rules, examined the “continuing con used, language confessions, address not ex- flict in the cases as to whether exculpatory culpatory statements. statements are included within the confes The majority rely on two posi- ill-founded sion statute . . . .” 493 at S.W.2d 196. tions to hold the exculpatory statement reviewing matter, In decisions on the it was 38.22, within the 1, ambit of Art. supra. demonstrated that the authorities indeed First, the majority quote 2, See. are in conflict. Among holding the cases supra, emphasize and the repeated use of exculpatory statements within the ambit of phrases “confession or statement” and State, the statute are Hernan v. 42 Tex. “statement or confession” as evidence of 464, Lightfoot Cr.R. v. 60 S.W. 766 and legislative intent draw to no distinction be- State, 515, 117 Tex.Cr.R. 35 163. tween confessions and exculpatory state- Among the cases holding exculpatory state ments. The use in section 2 of two distinct ments not within the ambit of the statute terms, “statement,” “confession” and indi- State, are Whorton v. 1, 69 Tex.Cr.R. 152 Legislature cates that did not consider State, 1082; Mason v. S.W. 74 Tex.Cr.R. synonymous them or identical in scope. 256, Terry S.W. v. Tex. furthermore, issue in this is not Cr.App., Thus, 420 S.W.2d 945. the winds one of the voluntariness of a statement change have swept over this issue on rather, under Section but one of the repeated past. occasions admissibility of a confession under Section Butler, however, “The oral statement language Reliance on the Section is impeachment used for exculpa- was not an misplaced. tory one.” 493 S.W.2d at 196. The oral Second, the majority rely on the failure impeachment used for in the case Legislature disapprove the inter- exculpatory. at bar was At trial pretation in Butler given Art. supra, to an alibi at testified time of the State, supra, v. shooting. approval In his volunteered as interpre- un- reply position and not in tation. That questions, unpersuasive solicited be- to the arresting related officer Legislature cause the has consistently failed police ride to the during the station that disapproval to show of this Court’s con-

3. But see note above. despite repeated of the statute

struction construction,

changes pointed in that Compare and in Butler. Hernan

above Whorton, Mason,

Lightfoot with Terry, Furthermore, legislative disap

all

proval of the Butler construction is beside because, point acknowledged by the Butler, “In

majority, specifically de

clined to decide if Art. 38.22 embraced ex culpatory (Majority opinion, statements.” Shoemake, James H. Houston, for appel- 812, 813). Because Butler did not decide here, Legislature’s the issue presented Vance, Carol S. Dist. Atty. and William significance. failure to act has no W. Burge, Houston, Asst. Dist. Atty., Jim ground I would overrule the of error and D. Austin, State’s Atty., for the judgment. affirm the State.

ROBERTS, J., joins in this dissent.

ONION, Presiding Judge. is an from a conviction in a bench aggravated trial for robbery where punishment (5) was assessed at five years. We are met at ques- the outset with the JOHNSON, Appellant,

Lawrence Edward proper tion of whether there was a notice appeal. Texas, Appellee. The STATE of *6 28, 1975, February On which was two No. 55283. sentenced, days after was he filed pro se notice of appeal. On March Court of Criminal Appeals of Texas. 1975, appellant executed a sworn written Oct. instrument before the clerk of the trial states, alia,

court. That instrument inter follows: day

“That he was on the 26th of Febru- ary convicted in said court of the Aggravated Robbery offense of day February thereafter on the 28th 1975, gave appeal notice of from such Ap- conviction to the Court of Criminal peals of Texas. transcript

“That the in said cause has yet been forwarded to the clerk of Appeals the Court of Criminal of Texas. “That I prose- do not wish to further appeal. cute request “I therefore that the notice of given heretofore be withdrawn.” response appellant’s request, the sen- following notation: tence contains the