*1 (Tex.Cr.App.1975, motion 26, 1977), rehearing, January including the opinions.
concurring dissenting rehearing should motion for State’s granted judgment should be
affirmed. SMITH, Appellant,
Donald Elliot Texas, Appellee.
The STATE SMITH, Appellant,
Louis Albert Texas, Appellee.
The STATE 51370, 51371.
Nos. Appeals
Court of of Texas. Criminal
Feb. 1977.
Rehearings March Denied *2 appellant’s punishment assessed each ninety-nine years’ imprisonment. ground of error as appellants’ first improperly confessions
serts that their Appellants evidence. con admitted into were shown to tend that their confessions failed to involuntary be showing required sufficiently rebut Tex. by our Sherman decisions Cr.App., 532 and Farr S.W.2d Tex.Cr.App., 519 876. contention insofar as agree We with this of Louis Albert it relates to the admission hold, however, that confession. We prop- Donald Elliot Smith’s confession into evidence. erly admitted ALBERT SMITH’S CASE LOUIS Smith, company in the Louis Albert attorney, of his surrendered to the F.B.I. in 29,1973. May being After New Orleans on in the charged placed he was New House of Detention for con Orleans statements signed finement. He written confessing agents for F.B.I. B. Thomas on June 5 and King P. M. and S.
June
prior
testified that
to meet-
Smith
ing
agents
giving
with the F.B.I.
and
upstairs
first statement he was taken
in the
beaten and threat-
House of Detention and
police,
ened
New
who told him
Orleans
he would
returned to Texas and receive
sign
worse treatment
if he did not
a state-
confessing
ment
to the Texas
Shelton, Austin,
Polk
for Donald Elliot
During
meeting on June
at which he
Smith.
statement,
agents
signed the
the F.B.I.
first
Palmer, Austin,
prepared
Laird
statement
for Louis Albert
him with the
pro-
promised
Smith.
him he would receive a
bated
in New Orleans if he
federal sentence
Fielder,
Lockhart,
Atty.,
Richard A.
Dist.
it,
signed
that he would remain in
Vollers,
Jim D.
Atty.,
State’s
and David S.
custody
federal
instead of
returned to
Austin,
McAngus,
Atty.,
Asst.
State’s
thought
Texas.
testified he
Smith
the State.
meeting
prepared
and the
with the F.B.I.
statement were a continuation of
F.B.I.
OPINION
what he had been told
the New Orleans
ODOM, Judge.
previous beatings.
police
he was
appeals
signing
These are
from convictions under
After
the first statement
cell,
night
robbery by
the former Penal Code for
fire-
returned to his
and then late that
morning he was
Appellants
jointly.
arms.
were tried
or about 3:00 a. m. the next
June 6 statement was
after
upstairs by the local
taken
taken back
because,
form,
again
signed
rights
ac-
another waiver
beaten and threatened
Smith,
making
the state-
first statement
said was
cording to
lawyer
and be-
wrong statement. He met ment on
advice
signed was the
June
cause he wanted to
the matter resolved
again with the F.B.I.
confessing to
the truth
come out. On
signed
second statement
wanted
*3
a
Thomas testified that he
and, additionally,
rape
to
cross-examination
to
during
knowledge
had
of what
said
committed
Smith also
no
while confined in
signed
only
he
Smith or done to Smith
testified that
statement
Detention, and
by
New
the New Orleans House of
because he was beaten
Orleans
any
them
that he did not know whether
threats
and was threatened
to
or
beatings
sign.
any
made or
effort made
abuse
further
if he would not
were
giving a confession. No
coerce Smith into
Agent King,
being
as a
called
witness
New
officers testified.
Orleans
State,
that he and Thomas
testified
that the admis-
at the New Orle-
This record demonstrates
interviewed Louis Smith
6,
falls
on June 5
sion
confession
direct-
ans House of Detention
and
of Louis Smith’s
ly
required reversal
1973. He testified that
the June 5
within the rule that
Farr
v.
stated
he wanted to
and Sherman
interview Smith
up,
signed a
it
get the matter cleared
that he
which was stated:
form,
physically
rights
waiver of
the law of this
long
“It has
appeared
giving
he
normal. After
of the ac-
that whenever
confession, according
June
to
signing the
5
to
acts is undis-
cused as
coercive
King,
agents
was told
Smith
law,the
puted, then as a matter of
confes-
entirety
they
not
it in its
be-
did
believe
sion is inadmissible.
omitted.]”
[Citations
rape
cause the
was not admitted. Smith
Farr,
at
right,
admit
allegedly replied, “All
I’ll
who testified
“Neither of the officers
rape
you
give
I’ll talk to
tomorrow
but
deny
or
hearing
denied
could
either
The June 5
you
statement
tomorrow.”
showing
there was
assertion because
6,
terminated. On June
interview
then
present
either was
when
state
testified,
King
voluntarily,
“came
Smith
Cochran,
ments were
made.1
form,
it,
signed
rights]
read his
[waiver
assertions, in
who could have denied the
proceeded
story.”
give
to
us the
Therefore,
testify.
explicably failed
any
burden
under
standard
State’s
King stated that he
On cross-examination
its discre
proof,
the trial court abused
knowledge
Louis
had no
of whether
Smith
appellant’s
overruling
motion
tion
beaten,
coerced,
or threatened
law
allegations
appellant’s
because
suppress
officers before the interviews
enforcement
were not contradicted.2
coercion
sign any
in an
him to
attempt
to induce
“1
State, Tex.Cr.App., 519
Farr
Cf.
statements.
876,
police officers testified
880 n. 4: ‘Had the
Agent
King
he and
Thomas testified that
any
at
or
and denied
coercion
someone
force,
New Orle-
thus
incident
use of
interviewed
denied
testimony,
contradicting appellant’s
the trial
on June 5 and 6.
ans House of Detention
judge
have determined
as trier of fact could
King’s testimony that on
He corroborated
voluntary.’
(Emphasis
to be
the confession
rights
the waiver of
signed
June 5 Smith
added)
“2
the record
that if the State
form and said wanted
clear
should be understood
It
explanation
of Co-
a reasonable
out,
straightened
the matter
testify,
failure
such as
death
chran’s
taking the June 5 statement the
that after
inability
trial court
to locate
their
did not believe it en-
indicated
appellant’s
have been free
disbelieve
would
testimony.
placed
neither
Co-
When the State
“Well, if
reply,
tirely, prompting Smith’s
absence,
explained his
nor
chran on
stand
come
you
completely,
don’t believe me
back
he did not
inference
the obvious
you
statement to
give
tomorrow and I'll
deny
allega-
because
could
404,
Georgia,
straight.”
record
He testified
set the
U.S.
See Sims v.
tions.
(1967); Haynes v.
anyway, already you told us what you’ve because DONALD ELLIOT SMITH’S CASE this, just something to close did. We need Donald Elliot was arrested our records out.” Slidell, 23, 1973, May the afternoon of near *4 Louisiana, Mississippi with a connection to in its effort establish robbery. agent ap F.B.I. Thomas observed called the voluntariness of the pellant at the scene of the arrest. He was three Texas officers who went to Jackson jail night, taken to local and agent Thomas who was and F.B.I. day vicinity next was returned to the of his in Louisiana. No during some of events money arrest to search for hidden from the Louisiana officers were called. Mississippi robbery. On the afternoon of appellant’s In direct conflict with denial 24th, day, appellant approached presence May agent of his on Thomas Thomas, agent accompany F.B.I. who was accompanied expedition stated he on its ing appellant and local officers on the money throughout day. search for search, orally and confessed to the Texas afternoon, Thomas, according Late that to robbery. day The next Thomas took a de appellant “called me over and indicated robbery tailed oral confession to the Texas that he wanted to talk to me alone.” He appellant. day from the Later that he was further testified: driven from Mississippi, Slidell to telling “I remember Donald me where on the 26th he met with a Texas that he felt that he was in a lot of trouble Ranger deputy and two sheriffs from Cald Mississippi robbery bank because of the County well who took a written confession. help and that he wanted to himself —he It was this confession that was introduced money, misplaced find the he had couldn’t against challenged him at trial now help it —and to himself out of this beatings as the result of and threats. trouble, good to show that he was in following Donald testified to the faith, that he would tell me about some May mistreatment. 23 after arrest On his things that he had done. When he other he was beaten local Louisiana officers in told me this I told him that he was not way jail. the car During on the that, orally required to do advised night May he was 23—24 beaten know, you pertinent legal of his jail. May At 3:00 a. m. on 24 he was rights, per policy. the F.B.I. jail transferred another to beaten. “Q. you? what did he tell And During May the money the search for initially me “A. Donald Smith told according appellant’s testimony, he was robberies that about several armed local beaten some more. He also testified that New in and around he had committed present during this F.B.I. Orleans, me he had and then he told May again search. 25 he was taken on On Lockhart, Texas, along robbed bank beaten, money again a search for the with a friend of his named Louis Smith.” presence this time in the the F.B.I. Thomas, appellant’s he first oral agent, protect According who offered to him if testified, ap- was at questions. would answer He “I confession to the Texas forced or induced coerced him pellant’s invitation and on initia- have making tive. this statement? into No, “A. sir. verifying that there had been a After Lockhart, that, “Q. anyone anything If like bank Thomas inter- did you anything about it? appellant again May viewed took don’t know a detailed statement him about the it, anything about “A. I don’t know Texas He testified that this- day we were only happened what appellant again eager interview seemed there. Contradicting appellant’s claim talk. then? “Q. nothing happened And statement, sign he Thomas refused happened that nothing day, And “A. testified that it was never no. sign, it was first co-operative he “Q. Did seem to be he typed out from his notes after returned you? with to his office. Yes, “A. sir. although also testified that he Thomas “Q. eager to be to talk to Did seem for evidence of not examine you? abuse, physical physical appearance Yes, “A. sir. as it was at the same on 24th 25th you, “Q. Really wanted to talk 23rd, except that after the arrest on the didn’t he? jail clothes. day first was dressed Yes, “A. sir. respect meeting With fact, “Q. Matter he wanted to tell *5 Jackson, Mississippi, the Texas officers in you everything about case? testimony from officers Da- produced Yes, “A. sir.” vis, During the initial Brown Gallat. agent suffi- The Thomas appellant according to warnings Donald claims of ciently contradicts Davis, telling to “I remembered also in Louisiana. coercion and mistreatment ‘Now, you any made threats or have alleged beating The last this?’, regards to and he stated promises in presence occurred at of Thomas’ outside ” gave the not . . Brown he had . m. on the 24th. The 3:00 a. following testimony on cross-examination: however, the 26th. given was not until you? to “Q. eager to talk Was he testimony that he observed the Thomas’ “A. to be. Seemed appel- appellant May 24 contradicted the Really you “Q. wanted tell about testimony that no F.B.I. was lant’s it? day. He denied present on that Well, very say he vol- “A. I’d talked beatings acts and other coercive untarily. day May during statements voluntarily? “Q. Very present. was Thom- May 25 when Thomas (No reply) “A. appellant’s testimo- contradicted the as also very that he was “Q. You’ve testified sign statement. ny a that he refused to you. wanted to talk cooperative and was According agent, to the the statement Yes, appellant. Further- never to the “A. sir.” was more, that the Thomas stated On examination Gallat denied direct eager the bank to talk about any at all that indicated there was to this the conversation initiated was not volun- to him that the statement subject. gave tary. cross-examination On following testimony: support for the Further conclusion involuntary was knowledge, appellant’s confession you do
“Q. And have the evidence elicited can drawn from law you, anything anyone, testimony is Texas officers. Their officer, might from the have said enforcement appellant’s allega- might sufficient contradict Elliot Smith that done to Donald
H promises tions that granting were made him a motion in limine as to such mat- Jackson. ters. State, supra,
In Farr v.
we stated:
This contention is without merit.
Normally, evidence of an extraneous of
“It is well
‘totality
settled that the
fense is not admissible unless it meets the
the circumstances’ is to be examined to
requirements developed by this Court in
determine if a
voluntary.
confession is
State, Tex.Cr.App.,
Albrecht v.
486 S.W.2d
g.
Alabama,
E. Beecher v.
389 U.S.
requirements
were met in the
Such
189, 19
(1967);
L.Ed.2d 35
Clewis v.
Furthermore, objection
case at bar.
to the
Texas,
87 S.Ct.
evidence did not assert violation of the mo
(1967);
L.Ed.2d 423
Akridge v.
tion in
complain
limine nor did it
of denial
Tex.Cr.App.,
(1973).
fact that his confession contained a state discovery requested: The motion for ment that he had “grass.” smoked some any “The name and of and all address Doctors, pathologists, chemists or techni- brief, Appellant’s however, does not di- cians, part any who took examination rect portion us to the of the record where J_W_V_ of body the of objection an was made the introduction any particles, organs, or of or fluids re- part of this of the confession. He has moved therefrom.” failed preserve error for review. See Prine v. Tex.Cr.App., 509 S.W.2d prosecutor The informed the court that this information could not inspected be un- Appellant’s ground next of error com- til it arrived Washington. He also plains of the trial court’s denial of mo- stated that it would not arrive until the tion for mistrial made after the State intro- rape case was set for trial. duced evidence of a rape which occurred robbery. the urges He also that the Initially, appellant, we observe that the prosecutor’s reference to this rape during brief, complains in his that he was not jury argument was improper, and claims discovery reports allowed of all other the State’s action violated the court’s order relating materials alleged rape. to the The however, the taken in the money matched those on discovery, motion for did not re- pre-trial robbery. The mo- quest this information. the request
tion does not contain same had first-hand Both of these witnesses appeal. urged that on knowledge the serial numbers the of currency. necessary for the It was that The record also indicates the State money the to introduce actual taken State reports, possession was not in of mate- during the offense. rials, of persons conducting or names the at the time the motion for examination pertains rule” “best evidence The discovery was made. writings or commentator documents. One has stated: The has failed establish reports relating specific and other material “The context in which it is prin- rape generally existed at the time motion for that best evidence agreed See, Spaulding today is should be defi- discovery ciple applicable entered. State, Tex.Cr.App., nitely clearly 919. We limits stated its proving of rule is: ground overrule the fourth error. defined. The writing, terms terms of where the are of number five con Ground error material, writing original must be permit tends the trial court erred in unless it is shown to unavail- produced ting hearsay to introduce testimo State able for some reason other than seri- had told ny Joe Davis that he proponent.” fault McCormick ous Joseph Dutrey one Donald Evidence, (2nd p. 560 Ed. Sec. money given some taken in Dutrey 1972). The record portion requiring rule the “best evidence” The cited to substantiate applicability has no circumstances of however, contention, contains the ground case at The final error bar. have, We never F.B.I. Thomas. is overruled. theless, of the record page examined the 51,371(Louis judgment The in Cause No. complained of in Smith) reversed the cause is Albert is is hearsay testimony claim. No contained remanded. Furthermore, objection thereon. 51,370(Don- request judgment relief in Cause No. sustained and further Smith) ground ed. The fifth of error overruled. ald Elliot is affirmed. argument urges
Appellant’s final DOUGLAS, Judge, concurring part by al that the trial court committed error dissenting part. lowing violate the “best prosecutor conviction of majority reverses the en evidence rule.” Two witnesses ground on the Albert *7 num testimony concerning tered serial have two should not confessions of the during money the bank bers on the taken because State admitted into evidence robbery. the “best Appellant claims that officers in not refute his rule” was violated because him later Louisiana had beaten money was not introduced the State. alleged beatings. of such because confessed witness, FBI, an agree. We One State do Neither testified bank, confession, per- she employee of the stated that Albert Smith’s took Louis who Ranger, sonally the serial numbers on the who Donald El- knew the Texas took or She Louis currency taken beat them. liot Smith’s mon- then the numbers on the stolen after his at- stated arrested in New Orleans for the then surrender his ey. torney Another witness State the FBI to called day serial A was not taken testified in numbers client. confession attorney later after his days the authorities. several currency recovered but asked take his currency the FBI and recovered called The numbers overwhelming the admis- statement, Louis want- evidence to make apparently because appellants The two confession harmless error be- up ed to clear his eases. sion of the being held for several other robberies doubt. yond a reasonable Mississippi committed in which had been alleged money that the The indictments questioned and Louisiana. When Louis was from Helen in the was taken prosecutor lawyer about his who She, trial, identified both Franks. family, been hired he refused as the robbers. There was appellants of the testify several times on the basis display the trial. lineup picture no or before During his trial in fed- Fifth Amendment. that the robbers were in the testified She Orleans, eral court in New he withdrew 26 minutes and it was bank for some 25 or claim of a forced confession. The officers many opportuni- lighted and she had well appellants who beat the were nei- them. ties to look at ther described nor named. approximately reflects that at The record arrested he After Donald Smith had been question appellants in day m. on the 8:15 a. in was with officers in the woods Louisiana bank, Rangel, Eddie a custodian took trying money to find the taken from a lobby gun at his head into the with a Mississippi robbery that he had hidden said, holdup.” “This is a Don- one of them when, questioning, there without he told an shotgun. the camera with a ald shot at FBI about the in Lockhart. bookkeepers moved all of the He that the Louisiana officers beat personnel into the tellers and other bank him before the confession was reduced to everyone threatened to kill there lobby and writing. He does not contend that the FBI shotgun head put the to Mr. Clark’s Ranger Depart- Joe Davis of the Texas asked, get money “Who can me the out ment of him Safety Public mistreated got of the other vault?” He the cashier any way. open and made them another woman None the officers who were available money had them load the vault. He mistreatment, were accused of of the women lie down bags. He made one only those who were unnamed and unde- raped in the vault while on the floor scribed the other state. The voluntari- just next to her. He hit the other woman ness of the confession made an was not raped on the head with a woman he had jury. issue before the The FBI who the door to the inner vault. gun and closed appellants saw both of the after the time appellants locked all of the em- Then both alleged beatings saw no bruises or marks on vault, shot the the bank ployees of either of them. $86,000 taking door some lock off the back and left. only hearing At the which was held be- judge fore the when the confession of Don- president and Helen Franks was vice ald was offered counsel stated: the Lockhart Bank. cashier of “For purpose hearing the limited above, she stated that while addition to the only, making any without admission as vault Louis Smith they were in the inner the truth of matters stated on the who was the other woman made her and statement, objection we have its open the inner vault attempt raped admission.” which took which had a dual combination had the The other woman open. two to The only purpose hearing for the before Mrs. Franks had the first combination and judge was to a determination of the *8 Both tried their combi- other combination. However, voluntariness of the confession. open. not He the door did nations but assuming enough evidence was not in- a second time and They them. tried cursed (there troduced the is much more to kill them. open. it not He threatened herein) than is set out to overcome the said, “Please, sir, got The woman appellants, assuming and the other of go let her outside my glasses.” is not have He agreement to admit the confession issue, glasses. When she enough the there was the vault to her to foreclose returned, try, deposit and on the third the door box of in Donald Smith’s wife New yellow Agent He handed them a canvas opened. which was sent to FBI Orleans bag put money Yarbrough Agent the in. He held Bruce in Antonio. San shotgun Yarbrough investigated on them and Franks could see Mrs. that he testified a pistol in his belt. The other woman held the bank in Lockhart. Without bag detailing the and Mrs. it with all of his he testimony, Franks loaded testified He found money. money the drive-in cash boxes that he received the that had been put in the vault and cash from them in the in New the recovered Orleans. through money the sack. He then over and loaded and found walked He looked the a in halves He then bill with quarters. some and the serial number $400 $10.00 bag by produced the door what was it in court. set the and asked K51590179A Mrs. vault. He in of secretary in the next was not interested Franks was of the board di- found it when he it contained ab- rectors of the bank and she testified that money stracts. the paid she directors with new with the serially a bundle bills numbered The other woman in the vault had on a largest top. with the number on last pants pulled He suit. her clothes down paid to be was with bill director number said, Honky “I to see a white want what money the K51590180A the rest of pulled open looks like.” He her blouse new that bundle of series of bills was the pulled fell all over floor. He buttons the day of the robbery. cash vault said, down below breasts and her bra her Therefore, one of the bills later found floor, got bitch!” on the floor “On She deposit was in Mrs._” safe box New Orleans proceeded rape “and she vault when was robbed. this, accomplishing he was he held While head pistol to her and when he finished of considering Without the confession ei- gun. on the he hit her head with She appellant, enough ther there is more than two the other putting heard the robbers appellants. to convict both Even evidence the outer heard employees in vault and she if the confessions were not admissible under possibly three or four shots. offered, introduction proof their a It beyond reasonable doubt. harmless Piwetz, president Ida assistant vice of the to conceive that a would not hard bank, fourteen or testified there were Harrington on this evidence. convict employees fifteen of the bank California, appellants. the time of the (1969), opinion in an Mr. L.Ed.2d appellants She identified in the courtroom Douglas, Supreme Court of the Justice what clothes each was and described kind of held introduction United States that the during the wearing robbery. Donald Smith who did the confession co-defendants employees the floor. made the lie down on subject and who were not to cross- having the two trouble She heard women beyond was harmless error examination the vault and next saw Louis opening she was strong doubt because there reasonable He ordered Smith come out the vault. against He Harrington. wrote: employees other into the vault. all “We, course, jurors not know the do went into the teller Donald Smith back judgment who sat. Our must based group rounding up area. As Louis record reading on our own of the vault, grabbed Piwetz’s toward the Mrs. proba- us what seems to to have been Af- played left breast and around with it. impact confessions ble two vault, they ter were all locked in the average jury.” minds of an was shot out. heard shots and back door time than These witnesses more Harrington the introduction each Under appel- acquainted wanted to become against other co-defendant’s confession lants. be harmless error. could holding that the Agent King majority’s recovered eleven hun- introduc-
FBI has not eighty-five from a safe tion of if it dred dollars
15
was
taken,
alleges that his confession
never
accused
legally
can
shown that
it was
present when
coerced,
who was
process
violates due
someone
error and
be harmless
place must
Supreme
acts took
alleged
to the decision of the
the
coercive
contrary
allegations of
Milton v.
stand and refute
Court of the United States.
take the
accused;
present
33
Wainwright,
if none who were
407 U.S.
S.Ct.
error,
State,
any,
if
in
absence must
(1972),
by
held that
their
L.Ed.2d
are called
indictment,
if neither of the
post
pre-trial
a
explained;
admission of
be
occurs,
confes-
allegedly
officer who
coerced
by
confession
obtained
above
law.
in the
as a matter of
posed
prisoner
a fellow
confined
is inadmissible
as
sion
beyond
harmless
cell with Milton was
bar,
Thomas
FBI
the cases at
in
of the overwhelm-
reasonable doubt
view
present when
that he was
testify
guilt.
Justice
ing evidence of his
Chief
appel-
beat
officers
the Louisiana
Chap-
cited
opinion,
Burger, who wrote
in
He was not
Elliot Smith.
lant Donald
California,
18, 87
man v.
alleged to have oc-
car when this was
(1967),
upon
which is relied
ROBERTS,
dictate
Judge, concurring
part
in both causes and that
both be
tained
dissenting
part.
reversed.
holdings in Farr v.
Our
confessions
(Tex.Cr.App.1975),
The issue is whether
and Sherman
(Tex.Cr.App.1976),
have been admitted into evidence
no2
of the New
which each
None
Orleans
officers
appellant
the
limited were called to
appellant’s testimony
took
stand for the
refute
physical
the
challenging
concerning
alleged
of
acts of
coer-
purpose of
the voluntariness
State,
explained.
his
Henson
cion. Nor
their absence
No
confession.
452 S.W.2d
one
the New Orleans House
(Tex.Cr.App.1970).
448
of
29, 1973, and
May
Detention between
June
Appellant
Albert
testified to
Smith
6, 1973,
testified in rebuttal
to
physical
numerous acts of
and coer-
abuse
physical
claim of
coercion.
subjected
by
allegedly
cion that he was
to
Appellant Donald Elliot Smith testified
city police
members of the New Orleans
Slidell,
that he was arrested near
Louisiana
initially apprehended
from the time he was
Parrish,
Tammany
of the
by officers
Saint
put
in New
in the New Orleans
Orleans
Louisiana,
Department.
Sheriff’s
After his
by
House of Detention until he was visited
arrest,
was taken to the
Tam-
Smith
Saint
agents
ultimately
the FBI
who
took
jail.
many
spending approxi-
Parrish
After
voluntary
He further
alleged
confession.
days there,
mately two
he was sent to Jack-
that he was
the New Orle-
testified
told
son, Mississippi, where he was interviewed
ans
that
have to
police officers
he would
Ranger
Appellant
by Texas
Joe Davis.
plead
going
keep
guilty
he was
Ranger
gave
Davis a written confession at
getting the “same treatment” until he did.
that
time.
King
called FBI
P.
agents
The State
M.
Appellant
also
Donald Elliot Smith
testi-
Thomas.
the
They
B. S.
testified
physical
fied to numerous
violence
acts
appellant
appeared
Louis Albert
allegedly perpetrated
and coercion
upon
be proceeding voluntarily in the confessions
him
Tammany
officers of the Saint
6th,
he gave them on June 5th and June
Department
while
held at
Sheriff’s
However,
testified
jail.
These acts of coercion
what,
any-
had
if
personal knowledge
of his arrest until
occurred from
time
to the
thing,
appellant
was done
between
transported
the time he was
29, 1973,
May
his arrest
date of
Mississippi,
Ranger
where met with
Da-
5, 1973, the date
first statement
June
Specifically,
alleged
vis.
the appellant.
taken from
jail
way
the automobile on the
testi-
Appellant Louis Albert
also
riding in
automobile with him
officers
acts of
coercion
physical
fied to
him,
fingers
kicked him and bent his
hit
police during
period
New Orleans
telling
going
back while
“You’re
talk;
gave
between the
the FBI
going
get everything
statements
we’re
from
1973,
5, 1973,
6,
going
everything
June
you;
you
on June
we’re
to know
did;
going
everything.”
tell us
respectively.
you’re
State,
State,
supra.
38.22,
Ann.C.C.P.,
man v.
and Farr v.
Vernon’s
and admits evi-
testify,
they put
appellants did not
nor did
jury
fact issue of
dence before
on the
volun-
jury
the issue
before the
evidence to raise
tariness.
In such a case the accused does not
voluntariness of their confessions.
right
jury’s
waive the
have the
determina-
Thus,
probative
was no
there
evidence of
supported
tion on voluntariness
sufficient
jury
which it could find
value before
simply
fails to take
because he
volun-
that
tary. Consequently,
the confessions were or were not
testify
stand and
on the voluntariness
is in the same
case
confession. The
of the accused
testi-
failure
position
charge
given,
if no
fy
before the
on the issue of voluntariness
admissibility
is “limited to
this Court
upon wholly
may be based
valid reasons other
confession(s) as a matter
law.” Morris v.
than the fact
that he has no evidence to
768,
(Tex.Cr.App.1973).
772
488 S.W.2d
See,
Denno,
368,
present.
Jackson v.
Accord,
Taylor
(Tex.
with this case. Sherman, supra, the defendant testi- Brown and Er- also called Ed State signed only his confession be- fied that he Gallat, deputy nest sheriffs from Caldwell had interrogating cause one of the officers they County, They .Texas. testified that penalty he would receive the death told him Jackson, accompanied Ranger Davis to Mis- This officer was not called if he didn’t. appellant to take the confession of sissippi, allegations and his absence was refute such They Donald Elliot corroborated Smith. officers who did wholly unexplained. Other Ranger appellant Davis’ had alle- deny the defendant’s testify could not rights showing been warned of his constitutional was no gations because there voluntarily. the statements appeared proceeding they to be were when However, made. allegedly also testified what, knowledge any- if personal lacked Farr, held that followed We appellant by the law thing, was done to the showing failed to fulfill its burden of State appellant who held the enforcement officers volun- confession was that the defendant’s prior meeting to their with him However, that: we further stated tary. Mississippi. if the should be understood “It expla- of the officers of the Tamma- None Saint a reasonable State ny Department (the interrogating who of- Sheriff’s nation of Cochran’s testify, coerced Donald Elliot as his death physically ficer) failure to such trial ultimately inability to locate giving Smith into or their Tammany been free to disbelieve anyone present nor court would have Saint testimony. When the jail while held Parrish nor there, placed on the stand testify were called to in rebuttal neither Cochran absence, the infer- explained obvious not
ence is that because WILLIAMS, Appellant, Jimmie Lee deny appellant’s allegations. could (Citations) such No inference could however, made, explana- if there were an Texas, Appellee. STATE tion of the absence of the witness.” No. 52335. Sherman, 2. at n. Appeals of bar, Court of Criminal Texas.
In the cases State has not showing fulfilled its burden of that either Feb. *12 voluntarily confessions appellants’ 9, March Rehearing Denied 1977. trial given. Consequently, the court abused admitting its discretion them into evi-
dence. reverse
Although appel- I would both this,
lants’ convictions because of I am not evidence
unmindful in the record other|; support would their convictions not- which
withstanding the erroneous admission However, Supreme
their confessions.
Court of the United States has mandated
that:
“It is now axiomatic a defendant deprived proc- case is a criminal of due founded, law if his conviction is
ess of part, upon involuntary an or in
whole without truth for the confession, (citation), falsity though ample there is aside
even support the confession to the convic- Jackson, (Citations).” 378
tion. 376, at 84 S.Ct. 1780.
U.S. has been followed lower fed-
This rule
eral of our courts and courts sister states can
occasions too numerous citation.
only regarded that it must be as a conclude
rule trial so basic to a fair its infrac-
tion be treated harmless can never 18, California, Chapman
error.3 386 U.S.
23, 824, 8, (1967); 17 n. 87 L.Ed.2d 705 S.Ct. Arkansas, 560, 568,
Payne
78
844,
(1958).
S.Ct. the trial judgments court should
both be reversed and both causes should be
remanded. however, only applies, 1976). may subjected conclusion This While the former type dealing rule, are in the Wainwright, of confession we Milton v. the harmless error bar —the “coerced” I note case at confession. U.S. 33 L.Ed.2d genus a difference between that there is (1972), may supra; the latter not. unlawfully spe- obtained confessions Chapman, supra; Payne, supra; (and unlawfully “coerced” cies of confessions. cited), supra. cases there Estelle, (5th 527 F.2d Cir. Smith v.