*1 tion, deferred although provisions for 42.12, V.A. PALAFOX, are in Article adjudication Appellant, found Julian Kenneth 42.12, out supra, sets 3d of Article C.C.P. § adjudication. It deferred procedure for Texas, Appellee. reference to other express
contains one of The STATE statute, And 8. being § sections 53611. No. 3d(b): After “... expressly states § all adjudication guilt, proceedings, Texas, Appeals of of Criminal Court pro- punishment, including assessment En Banc. sentence, proba- granting nouncement if tion, appeal as and defendant’s continue 24, 1979. Jan. adjudication had been de- guilt not Dec. Rehearing Denied (Emphasis supplied.) ferred.” procedure It is clear for provided adjudication
deferred is different from type types probation provided other statute, Legisla- and it is clear the adjudication of ture intended that after guilt following adjudication the deferred punishment if the
assessment shall be as adjudication of had not been deferred. guilt
We appreciate appellant’s and understand concerns, are any procedural changes consider, Legislature
for the not court.
Appellant’s contention is overruled. prac
While it would be far better tice for trial court to a de admonish consequences fendant as to the of deferred adjudication, have held we that Article 26.-
13, V.A.C.C.P., require does not ad such
monishment. Shields v. 608 S.W.2d 924 (Tex.Cr.App.1980). Long before the adjudication,
advent deferred we have 26.13, held that supra, Article did not require the court to admonish a defendant right bail, to his
as
etc. Wilson v.
(Tex.Cr.App.1968);
S.W.2d 542
Brown
ROBERTS and result. CLINTON, J., participating. not *2 Senff, for Nacogdoches, appel- P.
Tom lant. Adams, Atty., Nacogdo-
David D. Dist. ches, for the State. en banc.
Before court
OPINION
ROBERTS, Judge. for appeal This is an from a conviction murder; specifically, capital more course charged with murder of V.T. provisions robbery pursuant Code, 19.03(a)(2).1 C.A., Pun- Penal Section at death. See Art. was assessed ishment 37.071, V.A.C.C.P. error ground third is that
Appellant’s support the evidence insufficient guilty cap- finding appellant verdict jury We this contention and uphold ital murder. reverse. above, alleged
As noted in the course of committed the offense have 02(a)(1) of this code and: mits murder as defined under Section murder in the course of “(a) (2) A [*] person 19.03(a)(2) person [*] commits an offense intentionally [*] reads as [*] committing or at- follows: [*] commits Section if he com- [*] 19.- felony.” robbery, aggravated rape, or “(b) tempting An offense [*] to commit [*] under [*] this section kidnapping, burglary, [*] arson; [*] is a [*] capital began poking at I the house. then into attempting to commit rob- committing and peo- like charged telling him I didn’t bery. The indictment him 6, 1975, in Nac- September told him lant on or about and also guns at me ple point ogdoches County which I can’t remember. other stuff some there, knowingly and
“. .. did then and
go into the bedroom
I
him
made
*3
intentionally, cause
death of Paul
not been
bed which had
contained the
deceased,
Box,
by shoot-
hereafter called
up. Mike
bed was made
in and the
slept
ing
pistol,
him with a
that said Ken-
and
me
and
following
behind
Molandes was
Palafox,
there
neth Julian
was then and
calibre rifle
Ruger .22
carrying a
was
committing
attempt-
in the course of
and
Mike to
clip
it.
I told
rotary
with a
in
ing
robbery
to commit a
...”
something to tie
I found
him while
watch
In
case
conviction
the State relied
ties. Mike
some
up with.
I found
him
confession,
on
as well as
looking.
I was
gun
him while
had the
on
which tended to
circumstantial
ties,
Mr. Box
I
with
When
returned
support
Omitting
the confession.
the warn-
I
and
tied
face-up
his back
on
lying
was
ings
parts, appellant’s
and formal
confes-
tying
I was
just like
feet
the ties
his
with
sion reads as follows:
him to turn over
I
Then told
up a Gook.
and I
name is
Palafox
“My
Kenneth
I
his back.
I tied
hands behind
and
his
years
age;
am 28
I was born in
He
bed.
to
other side
walked
Brownsville, Texas,
I
present
and at
pointed
I
I
shoot him.
going
knew was
to
my
following
sider
address
home
pistol
Ruger
.22 calibre
my
magazine-fed
Avenue, Nacogdoches, Texas
East Starr
six times.
him about
at his head and shot
standing there
Michael Molandes was
together
I
“Michael Molandes and were
leaving
me
I did it. We were
with
when
evening
September
earlier on the
house,
Molandes said
when Michael
1975, my
at
apartment,
man-
to
make it look like
ought
try
that we
to
ager’s apartment
Apartments
at Hillcrest
up the
burglary,
a
so we kind of messed
in Nacogdoches, Texas. Michael wanted
drawer, rum-
by opening a dresser
house
country
go
someplace
out into the
and
Mi-
things and so forth.
maging through
car,
got my
shoot some
so we
in
a
guns,
got
to the car an
went out
chael Molandes
Cougar,
model
and drove to Melrose.
in
which had been
old Afro-comb
and
ex-father-in-law,
thought
I
Paul D.
my
dropped it
and we
long
for a
time
there
Box, might
shooting
do
on his
let us
some
a set of chest
by
baby
bed and
place, so I
the lane which
turned down
bedrooms. Mr. Box
in one of the
drawers
parked
led to his house and
in front of
billfold,
I took it
in his
and
had
$5.00
up
the house. We
went
on the
both
it
where
bedroom
placed
and
porch and
the door and Mr.
knocked on
sleeping.
Mr. Box had been
looked like
I
him if we
Box came
the door.
asked
television
portable color
Then we took a
go shooting
pasture
this late
could
screen, a flash-
set,
100 21-inch
RCA XL
P.M.,
at
since it
about 10:00
night,
light, some 30.06 ammunition and a 12
and
said
I
he was a little
he
no.
think
guage automatic shotgun, a rifle cleaning
coming
We
upset at our
out that
late.
kit,
scope
rifle with a
high-powered
and
both turned around
started to walk
and
calibre) and
(a
30.06
Springfield
1903-A3
said,
got
off
‘He’s
and Mike Molandes
AM FM radio.
stereo with
and
an 8-track
guess
I
it wasn’t self-defense be-
rifle’.
any of this
want
particularly
We didn’t
walking,
kept
we
have
on
I
cause
could
stuff,
but we
it to look like
wanted
guess, But
turned
and started
I
around
house,
leaving
As we were
burglary.
five
Mr. Box. When I was about
towards
and it was five
I looked at
the clock
Box,
up
I
away
jumped
feet
from
six
P.M.)
(10:55
We
minutes until eleven
air,
kicked the
sideways
turned
Nacogdoches
left and drove back
pulled my
hand. Then I
rifle out
his
apartment No.
Patsy
doorway
went
Turner’s
pistol out and shoved him the
multiple
death was
bullet wounds to
8-A at
at 1013
Apartments
Hillcrest
that these wounds
Road,
head. He testified
Douglass
Nacogdoches, Texas.
shots, and
separate
least four
caused
at
we
and I
Patsy was in
when
arrived
bed
lead
stated
he recovered four flattened
opened
my
her
door with
mas-
apartment
from the
fragments
a few small
bullets and
ter
items
from
key.
putWe
all the
taken
He further testified
deceased’s head.
apartment
Box’s
Pat-
Mr.
house in the
close”
“pretty
fired
the bullets were
from
Turner,
sy
including
Ruger
rifle and
range.
Ruger
Then we
pistol.
went to an
apartment
apartments
deceased,
where
Box,
in the Villa
testi-
C. R.
brother
big
Bulldog
body
lives
blond fellow named
fied that he discovered
p.
September
1:00 m.
pot
smoked
and drank a lot until
deceased at about
lying
that the deceased
7th. He stated
about 3:30
4:00 A.M. There were
tied
stomach,
his hands and feet
on his
with
there,
males,
7 or
all
people
about
in-
*4
telephone
The
neckties.
behind him with
cluding us.
went
I
We then
home and
floor.
holder and on the
off the
receiver was
up
woke
A.M. the
morn-
at 11:00
next
ing.”
sheriff,
deputy
testified
Copeland,
C. B.
murder
the scene of the
that
arrived at
he
confession,
In addition to the
He testified
body
after
was found.
the
witnesses,
presented
from several
testimony
in
hull shells
that
seven .22 caliber
he found
deceased,
Box,
of
including Reba
widow the
was
body of deceased
the room where the
6,1975,
September
who testified
on
she
that
ap-
found.
that
there
He also testified
Melrose,
was
home in
visit-
away from her
living
peared
struggle
been a
in the
to have
ing relatives
that
in Houston. She testified
Septem-
room.
on
He further testified that
p.
her
9:00 m.
10:11
she called
home at
and
missing property was
ber 10th most of the
spoke
hus-
p.
evening
m. that
and
with her
apart-
pursuant
to a
of an
recovered
search
every-
band.
at that time
She testified that
Patsy
occupied by
ment
Turner.
thing seemed
that she
in order. She stated
that on
(Patsy) Turner testified
Patricia
early
death
learned of her husband’s
murder,
living at
was
night
the
the
she
day
afternoon of the next
and then re-
night, after
the
That
apartments.
Hillcrest
immediately.
turned home
She stated that
bed,
Mo-
appellant
Mike
she was in
and
including
a
personal
guns,
two
property,
apartment
key
with a
landes came into her
stereo,
set,
missing
was
television
that she
had. She stated
appellant
the
items
Many
from
house.
of property
bed,
two
that
get
did not
out
place
were out of
and some drawers were
some
carrying
trips,
men made two to three
opened.
cartridges and the de-
Empty
testified
things
She
apartment.
into the
found in
bedroom.
ceased’s billfold were
gotten
had
her that he
appellant
that
told
appellant
Mrs. Box
that
was her
testified
his mother’s attic.
things
from
In October
he had
ex-son-in-law.
evi-
other
introduced much
Carol,
daughter. They
her
were
married
appellant had been
dence to show that
prior
of 1974.
stat-
divorced
to October
She
missing
items
from the
possession of the
ap-
ed that she and the deceased did not
testi-
Box
There was extensive
residence.
discouraged
had
prove
marriage
of the
regarding
mony from various witnesses
incident in which the
it. She described one
the home
the bullets fired in
whether or not
“exchanged
had
appellant
deceased and
pistol
were fired from
deceased
daughter
appellant
words” after
her
found
appellant, which Turner
belonging to
separated.
appellant’s
She also described
Urbanovsky, a
Joe
apartment.
her
marriage and
attempted
during the
suicide
Department of Public Safe-
chemist for the
prior
subsequent
to the
hospitalizations
his
afro-comb,
found at
an
ty, testified that
divorce.
crime,
human
contained
scene of the
Dale,
butt,
pathologist,
testified
A
also
origin.
cigarette
Dr. Charles
Negro
hair of
murder, was
autopsy of the de-
scene of
that he
found at
conducted
marihuana.
He
that
cause
found to contain
ceased.
testified
Pelequin
separate
occasions.
pellant
two
Story,
examiner with
Calvin
a firearms
time he saw
Department
Safety,
of Public
testified
that
the first
testified
fragments
killing
from the
talking
that bullet
recovered
about
lant,
was
“appellant
deceased,
as
as seven fired
head
well
said he
“[appellant]
He stated
Mr. Box.”
cases,
to him for
cartridge
away.”
were submitted
shit
going to blow
Box’s]
[Mr.
analysis. He
that in his
opinion
stated
left
that
Pelequin testified
cartridge
seven
cases
fired from the
During a conversation
party but returned.
he
appellant’s pistol, but
could not
party,
his return
with
after
had also
positively
fragments
state
he had blowed
“[appellant] said that
[Mr.
gun. He stated
been fired from the same
according
Pelequin's
away,”
shit
Box’s]
fired
fragments
could have been
testimony.2
from the
but that
to the mutilat-
pistol,
due
is well stated
fragments,
It
ed condition of the
he was un-
“[w]here
the statements
positive
puts
state
in evidence
able to make
determination.
accused,
exculpates the
party which
accused
Danny Stilley, a witness called
indirectly disprove
directly or
and does not
years
he
testified that
five
had
acquit
them,
to an
the accused is entitled
been an
He tes-
acquaintance
appellant.
262, 265,
56 Tex.Cr.R.
tal.” Banks
once, shortly
tified that
after
(1909). The rule was
119 S.W.
divorce,
he
appellant had stated that
language
different
stated
somewhat
going to
he
“get Mr. Box back for what
had
*5
436, 438,
State, 97
Huffman v.
Tex.Cr.R.
done.”
76,
(1924):
262
77
S.W.
“[w]hen
Stilley
night
also testified that on the
or state
a confession
placed
has
in evidence
appellant
Stilley
the murder he saw
twice.
exculpatory,
is
ment of the accused which
in an
party
apartment.
others
at a
the other
thereby unless
the state is bound
him,
On the first
saw
Stilley
occasion that
falsity of such
testimony
the
demonstrates
appellant
party
arrived at the
with Mike
course,
necessary
is
that
statement.”3 Of
Molandes and
Stilley
Molandes’s brother.
amount
confession
statement
the
period
testified
that after
time
that
ex
an assertion
would
plus
admission
left,
later,
lant
but he returned some time
charged.
culpate
accused from the crime
the
approximately
p.
at
a.
11:30 m.
12:00 m.
State,
(Tex.Cr.App.
v.
466
Davis
474 S.W.2d
time, according
At this
he
Stilley
had a
(Tex.
State,
1971);
475
938
v.
S.W.2d
Brown
appellant, during
conversation with
State,
v.
488 S.W.2d
Cr.App.1971); Simon
appellant
Stilley
asked
“if
knew where
[he]
(Tex.Cr.App.1972).
439
anything
[appellant]
that
could steal
[was]
money.”
and make some
testified
Stilley
therefore,
rule,
it must
To
the
invoke
conversation,
drop
that he tried to
the
has
that
the accused
be
first
established
pursued
appellant
that
the matter a little.
ordi-
acts which would
doing
admitted
during
He stated that
later
this conversa-
the of-
gravamen
narily constitute
tion
he had blown Mr.
“[appellant] said that
Then,
this Court must determine
fense.4
away.”
Box’s shit
alleged to be excul-
whether the statements
would clear or tend to
patory are such as
he
Pelequin also testified that
at-
Sam
guilt. Davis
fault or
night
the de-
clear the accused from
party
tended the
on the
467-468;
State,
State,
Brown v.
ap-
supra
ceased’s death. He
that he saw
v.
at
stated
4.Thus,
testify.
appellant
where
accused makes no admission
The
not
Glover v.
did
Cf.
State,
636,
1978).
entirely exculpato-
(Tex.Cr.App.
guilt,
637
his
566 S.W.2d
of
ry,
statement
may
Trevenio v.
not be invoked.
rule
207,
1162,
State,
209,
quoted with
3. Both Banks and Huffman were
87 S.W.
48 Tex.Cr.R.
State,
followed,
approval,
584,
State,
in Reed
119
(1905);
v.
Dixon
128 Tex.Cr.R.
1163
v.
319,
459, 463-464,
588,
328,
(1935).
46 S.W.2d
321
Tex.Cr.R.
83 S.W.2d
330
State,
16,
(1931) and Medina v.
164 Tex.Cr.R.
17-18,
273,
(1956). And see
296 S.W.2d
274
(Tex.Cr.App.
Richards v.
511 S.W.2d
1974).
955;
remaining question is whether
The
(note
supra
supra
at
v.
Richards
exculpatory state
appear that the
3) at 6-7.
it must
Finally,
the State has refuted
exculpatory state-
has not refuted the
confession. Since
appellant’s
State
ments in
(note 3) at
supra
ment. Medina v.
ele
appellant as to an
exculpate
State, supra
And
274-275.
see Glover
offense, they
disproved
must be
ment of the
2).
(note
Mullaney
doubt.
beyond a reasonable
1881,
Wilbur,
95 S.Ct.
421 U.S.
us,
case
ad-
In the
before
We do not believe
(1975).
L.Ed.2d 508
mitted in his
that he
Paul
confession
killed
this burden.
State has met
Box and that
the items
from
he took
stolen
Box’s home.
therefore satisfied the
He
of the non-confessional
An examination
requirement
by admitting
first
of the rule
relied
evidence reveals that
constitute the
normally
acts which would
was
that
murder
two facts to show
alleged
offense
in the indictment.
robbery.
course of a
committed in the
However,
any point
did not at
itself, and the
was the murder
first
these
even
imply
in his confession state or
taking
from
property
second was the
the murder was committed
course
the deceased.7
the home of
as
In
robbery,
alleged
the indictment.
disprove
However,
do not
these facts
fact,
clearly
he
that the murder was
stated
appellant’s
Then, according
its
done for
own sake.
beyond a
confession,
they do not show
since
confession,
companion urged
appellant’s
was com
doubt that
murder
reasonable
they try
appear
to make it
rather
robbery
mitted in the course
it was
part
burglary;
murder
of a
At
than
confession.
as described
reason, according
most,
non-confessional
the State’s
fession, that the items were taken.
”
murder
not
likely
makes
as
it “as
exculpatory,
are
These statements
Mullaney v.
robbery.
the course
appellant was not
they
since
show that
(empha
Wilbur,
95 S.Ct.
supra at
charged in
indict
guilty of the
offense
just
readi
as
original).
sis in
This evidence
*6
to
may
ment. The
be sufficient
statements
set
murder
supports
of the
ly
the version
of
lesser
appellant
guilty
show that
the
out in
confession.
the
murder,
by
as defined
included offense5 of
this, es-
requires more than
process
Due
Code,
they
19.02 of the Penal
Section
Mullaney
penalty
in a death
case.
pecially
show
clearly
ap
are
not
to
sufficient
State,
Wilbur,
568
Chambers v.
supra;
v.
of murder
the course
pellant
guilty
(dis-
313,
(Tex.Cr.App.1978)
329-330
S.W.2d
charged.
robbery,
of a
offense
For this
the
hold that
senting
We therefore
opinion).
to
the
reason the
tend
clear
statements
of
to
its burden
the
has failed meet
State
guilt
be
appellant of
and must
considered
said:
Mullaney
majority
proof. As the
exculpatory.6
37.09,
it
of
least
the extent that
frees the accused
to
Ann.C.C.P.
5. See Art.
Vernon’s
punishment
higher
attached
of the
the burden
elementary
where
the
State,
It seems
greater
v.
offense. See Jones
the
proves
other than
the
of an offense
commission
supra.
charged,
evidence is
the offense
exculpatory
the State’s
general
Applying
to the case be-
rules
these
charged,
the
to the offense
us,
that insofar as the statements
fore
we see
fact,
acquittal.
accused is
to an
In
this
entitled
appellant was
showed that
the confession
the
State,
general
v.
is the
Martinus
47 Tex.
rule.
guilty only
of
the lesser
offense
of
included
(1905);
84
831
v.
Cr.R.
S.W.
Converse
murder,
exculpatory be-
the statements were
273, S.W.2d
Tex.Cr.R.
appellant
they
the death
to avoid
cause
allowed
(Tex.Cr.
(1941); Jones
tive of the
McCormick, supra;
1975). Exculpatory
Mor-
Wigmore, supra;
(4th Cir.
Weinstein,
by
Basic Problems of State
gan and
considered
weighed
should be
Evidence,
(5th ed.1976).
p. 63
and Federal
fact,
accepted
be
trier of
and should
Supreme
has stat-
The United
Court
States
fact,
same
trier of
rejected by the
present
little
rela-
ed that
the rule “bears
in the case.
manner as is the other
proc-
the realities of the criminal
tionship to
I dissent.
ess,”
application
its
and has held that
may
some situations
interfere with a de-
dis-
DAVIS, Judge, joins
TOM G.
right
cross-exam-
fendant’s
to confront and
sent.
ine witnesses and to call witnesses in his
410
Mississippi,
own behalf. Chambers v.
284,
1038,
93
U.S. S.Ct. (1973). reject- The “voucher” rule has been Rules of
ed Rule 607 of the Federal Evidence, application and its has been limit- 38.28, Art. ed Texas. V.A.C.C.P. statements” “exculpatory In order for the MUSGRAVE, Appellant, Wesley Robert the statement of the applicable, rule to be plus accused must constitute an admission v. exculpate the ac an assertion that would Texas, Appellee. The STATE charged. cused from crime Simon v. No. 57175. State, (Tex.Cr.App.1972); 488 439 S.W.2d State, (Tex.Cr. 938 Brown v. 475 S.W.2d Texas, Appeals of of Criminal Court is, if the accused does not App.1971). That Panel No. 3. doing the which constitute the admit acts 26, March offense, will not gravamen though even be bound his statement 23, 1980. Rehearing Dec. On inconsistent with facts asserted therein are State, supra; finding guilt. Simon State, State, supra; Davis v. 474 Brown v. The rule as (Tex.Cr.App.1971). 466
S.W.2d
appli
statements also has no
testifies to sub
cation where the defendant
in his
stantially the same facts as contained
and the trial court
exculpatory statement
jury.
Bruce v.
submits this defense to
(Tex.Cr.App.1966);
fendant, or far- how incorrect no matter be, merely because the might
fetched they Houston, Erwing, A. Hellmut by the State were introduced evidence. See lant. by other disproved and not