*1 discrediting appellant’s rights that their in- limiting
effect could not be cured charge. in the
struction court’s out, judgment
For the reasons is remanded.
is reversed and the cause LEE, Appellant,
Lonnie Texas, Appellee. STATE
No. 42787. Appeals of Texas. of Criminal
May 6, 1970.
Rehearing Denied June
3J7 *2 bar, the appellant only case at called three grand witnesses. jury As the and its panel, the sheriff testified that he did not recall man having black been selected on the jury commission. He believed that there were “some” on grand the jury panel, but did not believe that there were “any” on grand jury. the He stated that there were “eight of on the hundred” the jury panel today.” “here The district clerk testified that he did serving not remember black on man commission; jury however, the recog- Barron, Falco, Jr., W. E. and Joe James only nized the name on of one black man Bond, Navasota, Newman, Houston Joe J. grand jury the panel, and five six on (On Appeal Only), appellant. panel the from this jury which was drawn. Warren, F. Atty., Dist. and Rob- James county as judge only testified to his Brewton, Navasota, ert County Atty., D. opinion percentage people of black Vollers, and Austin, Atty., D. State’s Jim county. for the State. hearing is not such a as had be-
This we State, supra, OPINION in Davis v. us we cannot, facts, these that discrimi- on hold MORRISON, Judge. nation has been shown. rape; punishment, The offense is Appellant’s ground second of error years. is that the witness Paul per Hill was not mitted to answer the appel about firstWe address ourselves to the lant’s “character as to his wife and fami quash motion panel the jury on the ly.” showing There is an absence of any grounds people that black had been exclud in the record as what the witness would jury ed from the commission who selected permitted have answered if he had been panel. The motion was filed on State, do so. In Deams v. trial, day of the apparently neither the 265 S.W.2d we out the appellant state nor prepared. In procedure employed to be in the event such cases caution should be the watch ruling by an adverse the court. It should word, delay and a should have re been be noted that in Hamman v. quested. But, in viewing this case as 301, upon Tex.Cr.R. 314 S.W.2d which us, comes to we ap must determine if the appellant relies, retired, jury that the were pellant has shown that per discrimination sought preserved for answer was meated the selection of panel rea in the record. son of exclusion. Addison v. said, “If Appellant’s third of error appellant has been here discriminated that the court should have instructed a ver against by race, claims, reason of his as he guilty, dict of alleged because of the such discrimination must rest in the act of- prosecutrix’s inconclusiveness of the identi jury and not in the act commissioners fication of appellant as being her assailant. judge in selecting the jury commis principal His prosecutrix contention is that sioners.” testified that wearing Unlike Davis v. army fatigue jacket, whereas 242, upon relies, in his witnesses testified that he had confession, Werner, took the Ranger who army owned no such served as follows: authorized warned were jacket. Clearly accept claim and to disbelieve I whether or not ask Could prosecutrix’s in-court identification you took from this was the statement was, mistake, if it as to the appellant. Her Elgin, Texas? on March the 10th him assailant which her make of automobile sir, probative little value. this is the can same statement. drove *3 proof you to “Q. right, four relates All took that Ground number before statement, you to a lie detec- had subjected was did him that he warn dictating confession. prior tor to his right a to counsel? by and is evidence both state There warning a that he him “A. Gave verbal taking of a lie detector pellant as to the right to counsel. had a confessing. prior his At
test at Austin to by testimony in out place you tell also that he could “Q. Did him objecfion appellant, the court sustained the give a if he wanted refuse statement consider the and instructed to? Appellant evidently satisfied was same. Yes, “A. sir. ruling, he asked for
with such because nothing In Nichols v. further. quit “Q. you Did tell him that he could upon relied stop any and time he the examination by appellant a motion for mistrial was wanted to? made. Yes, “A. sir. It should further noted that in be Webb if “Q. you Did tell him that —that ishe employ lawyer a that he would unable “ * * * 331, we said lie of the use hired one? be detector test as a means does not violate accused’s constitutional Yes, “A. sir. rights or render the written confession And, words, “Q. you gave in other what ” * * * involuntary.
thereafter made commonly is what known as him Statutory Warning?
Appellant was arrested one month rape question in approximately after the Right, “A. sir. p. jail. m. There 9:00 and carried any tell him that statement “Q. And by justice peace. warned of the him, against that was taken could Thereafter, occurred, questioning some in him at the trial ? used evidence no morn confession was taken. The next ing, in had been left alone Yes, “A. sir. hours, cell for four came knowingly intelligently Did “Q. and jail,' Appellant and conferred with him. voluntarily waive these taken to again, was warned and then was make this statement? trip Austin. was made with the knowl The Austin, edge Yes, “A. sir.” rights, and then again warned of his court that the confession shown On the dictated a written confession. essentially the same as one taken Austin, way dis home from officers appel- (subsequently lost). Austin covered that the confession been lost. lant testified: Then, appellant police was taken to the you written Did ever ask Elgin “Q. anybody station where he made the gave you Judge Wickey questions confession which was introduced before evi confession, warning your rights giving your dence. Prior to this last ? about circum- hold under some the United States jail house. At the “A. also, See the confession.” stances vitiates Right? White, Criminal Texas Code of Onion Changes Affect- Procedure —Its 1965-1967 sir, No, then. “A. Police Prac- Corporation ing Courts question anybody ask “Q. Did tices, (1968). We So.Tex.L.J. anything the crime about hereto- of detention discussed fore. No, sir. “A. auto- Prior to the search Wickey come in and tell Judge “Q. Did by the was warned mobile have a had a you, you peace, he executed justice
lawyer ? search his automobile written consent justice. which was witnessed had a you “Q. Did he tell *4 brief, appellant By supplemental right to remain silent? prose- lineup identification of questions the Yes, sir. “A. is lineup as the term cutrix. There was no arrest, pros- commpnly After his used. “Q. you Did he tell had a you ap jail identified ecutrix came ques- stop interrogation or appel pellant’s It is not voice. shown any tions at time? any required say anything lant Yes, “A. during particular which he had said words the crime was dis the commission of as you tell you Did he by in Beachem v. cussed this Court money, right, any or if didn’t have 272, 162 S.W.2d 706. lawyer they appoint you a would prosecutrix heard him talk. merely 263, California, of 383 U.S. sir.” Gilbert v. State 1951, Supreme 1178,the L.Ed.2d 87 S.Ct. 18 of the confes- The issue of voluntariness exemplar, said, handwriting “a Court mere jury. sion was submitted to the content what writ in contrast to the of itself, is an ten, or body like the voice his had counseled with Since outside characteristic identifying physical attorney, properly had been warned in line Amendment).1 The protection,” (Fifth requirements of Miranda Ari with v. ap identified positively thereafter witness zona, 384 U.S. 86 16 L.Ed. S.Ct. pellant. 38.22, 2d and Articles 15.17 and Ver Ann.C.C.P., non’s and testified on cross error, judg- Finding no reversible he had examination that been warned ment is affirmed. Werner, by rights Ranger in Austin his presented the evidence here decline under RE- MOTION FOR APPELLANT’S ON the confession inadmissible as to hold HEARING matter of law. Appellant’s seventh of error re- ONION, Judge. Both the state and lates arrest. by assessed punishment
pellant overlooked the rule discussed
years. The
rape conviction
Head
this court in
v.
in error
original submission was
said,
opinion on
wherein we
“ *
**
as 60
punishment assessed
reflecting the
it is
not the arrest
the detention
years.
Supreme
this Court and the
F.Supp.
Bundle, D.C.,
ex rel. Johnson v.
U. S.
complains
evidence. Even the
appellant again
troduced into
rehearing
On
it
as the state-
acknowledged was the same
into
of his writ-
evidence
of the admission
particularly
given
ment
in Austin.
extrajudicial confession
ten
deprived
dur-
contending
of counsel
he was
appellant’s
it
that de
If
contention
interrogation.
ing
warnings
law enforce
spite the
and waiver
forever
from
ment officers were
barred
he
appellant’s
p.m.
After
arrest about 9
interrogation
state
future
be-
taken to
He was then taken
jail.
attorney,
ment that he desired
call an
magistrate and
accord-
warned
State, Tex.
agree.
Hill
we cannot
See
15.17,
It was
ance with Article
V.A.C.C.P.
Cr.App.,
to retained
warning,
What was that
were
Gunter v.
recently
gave
there when
the warning
admissible,
under
held
presented, a con-
the circumstances there
It
a warning
that he
taken in absence of and without
fession
didn’t have to take a lie detector—
appointed
court
notification of accused’s
“Q. —just—Shh—shh—shhh—
counsel, in
clear cut affirma-
view the
tive waiver.”
“BY THE COURT:
applicable
There
We think Hill is
here.
“The jury will not
ques-
consider that
year
appel-
is no evidence that the 34
old
tion or any answer, I don’t think
an-
threatened,
cajoled
lant
into
tricked
it,
swered
they
will not
consider
showing
lengthy
a waiver and no
inter-
for any purpose, and it’s withdrawn
rogation
incarceration
or incommunicado
jury
from the
together.”
all
mitigate
finding
would
Counsel then approached
bench,
of a valid waiver.
removed,
and a motion for mis-
trial was made and overruled.
course,
Caution,
urged
on law
agencies
taking
enforcement
statements
It has been the consistent holding
counsel,
when
appointed,
either retained or
of this Court that evidence of the results
Here, however,
has entered
picture.
of a lie
polygraph
detector or
test is not
view of the clear cut affirmative waiver of
admissible on behalf of either the State or
appellant prior
counsel
to the taking
the defendant.
Renesto
S.W.
of the confession
other surrounding
*6
498;
State,
2d
944;
Hart v.
447 S.W.2d
circumstances, we remain convinced the
State,
59;
Wall v.
417 S.W.2d
Nichols v.
confession
properly
admitted into evi
State,
335;
378
State,
S.W.2d
Placker v.
State,
dence. See Gunter
Tex.Cr.App.,
v.
406,
171
546;
Tex.Cr.R.
350 S.W.2d
Davis
421
opinion).
S.W.2d
(concurring
657
State,
456,
v.
165 Tex.Cr.R.
308 S.W.2d
880;
Appellant
State,
also
Stockwell
vigorously complains
v.
Tex.Cr.R.
669;
disposition
S.W.2d
Peterson
ground
of his
v.
of error #4 on
110, rehearing
original
247 S.W.2d
submission. A re-examination of
denied
such
ed to a lie Tex.Cr.App., detector test erroneously In Paredes v. correctly points out, admitted.2 He was shown in the how no error ever, that he nonresponsive did make a motion an officer to the for a answer of mis trial following the the accused “to a admission of such effect that he had taken testi mony machine,” and that the record did polygraph the statement in where opinion on original if given, submission to been contrary is not indicate a test had Further, in Ro- erroneous. given, the results thereof. subject- Appellant’s ground error #4 reads as effect defendant polygraph follows: test or ed to a lie detector testimony “The result court committed material error test as such highly prejudicial purported thereof results thereof or permitting of law.” defendant matter evidence to the inadmissible as a per v. in a state- was shown reversible error
no the accused of an officer that
ment polygraph test where subjected
been unresponsive and the
the statement the jury result was revealed disregard.
was instructed asked in the case
While barreled, it does
bar was somewhat double to elicit appear designed given answer which we conclude was on its
unresponsive. quickly The court disregard instructed
motion
partial result of such test answer. The
was not mentioned. light of the cited authorities above presented, per-
and the circumstances
ceive no reversible error. therefore We error
remained convinced that
#4 is without merit.
Appellant’s rehearing motion for is over-
ruled.
The NATIONAL LIFE AND ACCIDENT COMPANY, Appellant, INSURANCE NOTTER, Appellee.
Mrs. Barbara D. Davis, No. 4891. E. Thorp, Robt. Matthews & Dallas, appellant. *7 Texas, Appeals Civil Waco. Wilson, Berry Jorgenson, & Gallagher, Dallas, appellee. Roberts, May 21, Bob Rehearing Denied June OPINION
McDONALD, Chief Justice. subdivision involving is a case This venue Ann.Tex.Civ.St. Article Vernon’s defendant Insur- Plaintiff Notter sued of insurance on Company policy ance filed Defendant County, Texas. Navarro in Dallas be sued plea