*1 MOORE, Harold Orlando
The STATE Appeals
Court of of Texas. Criminal Coil, Dallas, appeal, K. John
appellant. Henry Wade, Atty., Dist. Dade, Douglas Mulder, Malcolm P. James Elliott, Finstrom and Camille Asst. Dist. Attys., Vollers, Dallas, and D. State’s Jim Austin, Atty., for the State. *2 under arrest “A. I told him he was OPINION may said be used anything and he against him. DOUGLAS, Judge. “Q. immediately? told him You murder; pun- is for The conviction -Right,yes, “A. sir.
ishment, years. fifty “Q. right, you All soon the evidence sufficiency of what, if anything, said by challenged. right you?” Defendant back to reflects The record objection An of Hilldale in seen magistrate had not been taken before a m., 2:30 a. approximately at Dallas any rights advised of his day April, 1967. Sunday, the 9th of -by arrest made him Hilldale, was found body against was made and used following day 10:00 a. m. at about Wooldridge testified: then tightly his pulled around awith necktie said, you got me.’ glad He ‘Im “A. strangula- of death was The ’cause neck. “Q. Anything else? tion. told him turn “A. And then I around Saturday, that on said, around and he and he turned hitchhiking, and the de- he ‘God, you got glad I’m me.’ They gave drank beer him a ride. ceased “Q. right, you All what did do then? then their lunch went to with they drank wine. the deceased where said, ‘Well, why you glad I so “A. the de- hit During an said, you,’ got and he ‘I killed fist, keys to de- took the ceased with his said, man,’ he T don’t even ” At about wagon and left. ceased’s station the man know was.’ who m., he arrived Fort Worth or not The record is not clear whether Monday following remained until the Wooldridge jury present and heard he was arrested. he had appellant saying Fort people from Worth Three he would judge killed man. The stated had killed a man appellant said he anything if jury instruct heard Two wit- did not know. name he whose glad statements ‘I’m other than two appellant testified nesses for me’, ‘God, you got you got glad I’m passed out in Fort Worth intoxicated ”, then me’ instruct- consider it. any statements jury ed the not to consider any made. were other than those two error, in his first all three of this record com- error was reversible spon- arrest were statements the time of his mitted, made after because statements minute after within taneous and violation were arrest arresting of- time first saw the Arizona, 384 U.S. holding in Miranda v. ficer. H. 694. W. 16 L.Ed.2d that he was Wooldridge testified the evi the trial ruled Had court County; saw Tarrant stable admissible, error would dence no reversible wagon appellant get station 38.22, 1(f), been shown. have (the at a station deceased’s) service part: Ann.C.C.P., provides in Vernon’s transpired: preclude “Nothing shall contained herein * * * any state- admissibility District (Mr. Assistant “Q. the arrest or you to ment Attorney) What offense.” anything first? him if
(J45 her the Tex.Cr.App., passed In Gonzales v. out. She saw the deceased cert. denied 387 (1966), on the floor of the bedroom. She de- arrest, ceased had that after an an oral invited held drink. appellant’s was admis She declined regard heroin fession with invitation to have *3 gestae exception where drink. She there under the res was sible a minute and apartment. then went to was made within seconds the confession apartment. the after the officers entered While appellant, she identified objection, being without the man in the the that make a elements If apartment. She testified that she saw four pres are part or five people lineup in a the ent, is made the fact that such a statement Wednesday; that all were the same race. inquiry, response an to does no.t make The they officers did not tell her had the Morris v. testimony inadmissible. man. There were suggestions. no hints or 184; State, 157 Tex.Cr.R. 246 S.W.2d lineup was conducted “fair and State, 154 Tex.Cr.R. Henderson v. square”; she had no trouble identifying ap- pellant. Ray, & Law of In Texas McCormick On cross-examination she testified that Evidence, 1212, 88, is found: say she appellant would that not light- was course, or acts the statements “Of where skinned, lighter but that was than most requirements satisfy the accused Negroes; the best she recalled none of the hearsay exception some to other people lighter was than Negroes most ex- rule, spontaneous (res g.e. exclamations cept appellant; “I don’t remember though admissible even gestae) they are like; what all just of them looked recog- ** * they incompetent be- as confessions him,” nized I didn’t take that cause made while arrest.” them, much, much time to look at be- cause I recognized him at once.” Arizona, pro- not Miranda v. does state- of volunteered hibit introduction admitted, Appellant while testifying, that ments. he was in the prior but the time to was that time testified ground first of error is the witness Bilsha. Bil- Complaint is made Marian June to iden- permitted, testifying, sha was Appellant deprived was not of due per- as the tify appellant in the courtroom law, not because he did of the de- she saw in son lineup. Herring counsel v. ceased, appellant not have because 440 S.W.2d (1969); Martinez v. State lineup attorney awhen was held. (1969). S.W.2d 842 occurred before The confrontation appellant June In the last 12, 1968, States v. the case of United inadequacy there counsel at tends Wade, 18 L.Ed. 388 U.S. the trial. Den retroactive. Stovall 2d by appel- The record on the trial is used no, 388 U.S. attempt incompetence. in an lant to show Trial counsel was attacked on present case would show Nothing pointed lineup illegal. that the As tainted identification was that the in-court earlier, lineup occurred before lineup. The witness Bilsha by the Wade, supra, not which is to be lighted apartment she went applied retrospectively. about 2:30 a.m. deceased at introduced evidence that and that State see the pistol carrying told standing table. at a coffee record does not show a sub- This proper is now poena for the witness made, issued relied and this objection was not tactics, Counsel, as a matter of Sharp. incompetence. The evidence upon to show it was best pistol could have decided appellant had a was that witness, had elicited because he her as Gib- Gene hand in his Boyd on examination man, cross from Officer he had killed son during investigation Judy (Gibson); kill would time that Hilldale was seen said the last man; ap- how he killed did not or 4:30 Sat- alive was around 4:00 o’clock to sev- keys the car pellant showed urday belonged people eral not have been any could Error if deceased. not reveal record does incom harmful, This *4 trial counsel. petency or ineffectiveness he in- asked pistol, bought the ground of is The third answered, it, person “A
tended to never knows.” is judgment affirmed. prosecut next MORRISON, Judge (concurring). attorney kept the issue before race ing support The record does jury. specifically I concur the due appel witness testified tention. One Denno, portion Stovall man. had killed white lant said he State, Tex.Cr.App., cite: Graham v. 422 S. W.2d note that I further there was incompe is contended It next hesitancy no the part of the reporter shown in that the tence was identifying appellant as there was re required take final down opinion Supreme cent of the Court incompe reflect This does not argument. California, Foster v. brought can argument Errors tence. 1127, 22 L.Ed.2d as well as informal by formal forward exception. necessary It is not bills of perfect a bill 36.20, V.A.C.C.P. exception. subpoena that a Judy Sharp,
have been obtained have testified
she would Saturday afternoon. alive that Wesley WRIGHT, Jr., Appellant, William he performed Rose testified that Dr. Earl at ap- autopsy STATE Monday, ; proximately p.m., 10th thirty-six between that death occurred before, forty-eight sixty hours hours Appeals of Texas. of Criminal Court p.m. Saturday. would have been 1:30 appellant’s theory, the testi- mony that Hill- would show afternoon, alive on
dale was killed Hilldale. could not have the testi-
Counsel for overlooks
mony have oc- of Dr. Rose death could thirty-six hours
curred within before
autopsy (possibly 1:30 o’clock
morning).