*1 osteopath he saw the testified that An TURNER, Appellant, Brooks period about appellant one for hours, appellant had and one-half brain; deficiency in architecture of the Texas, Appellee. The STATE of patterns epileptic from that he had suffered childhood; precipi- alcohol since and that problem, using alcohol and tated his Court of Criminal he did not know and seizures right wrong. between and difference rebuttal, T. Dr. the state called John M.D., Holbrook, M.D., Jones, Dr. Robert Garrison, a clinical Dr. R. and William testified he
psychologist, and each expressed the appellant
examined
opinion appellant differ- knew the right wrong.
ence between jailer affidavits the sheriff County Dr.
Ellis and of Dr. Jones Compton were introduced expressing opin- these affiants appellant right wrong.
ion that knew from Compton
It is noted that Dr. testified on
the main trial and Dr. Jones Also, of the motion. the record shows
Dr. examined the Jones February the defense on be- began February
fore the main trial on testify during
but he was not called to
trial. properly presented ap
If record
pellant’s review, appears contention for
that a careful consideration thereof shows
no abuse of discretion the trial court
refusing newly the motion on the discovered
It is observed that a trial insanity pre issue is not 932b,
cluded under the 3, V.A.C.C.P., prior
Sec. to the final dis position appeal. Ralph Chambers, Houston, appellant. for Briscoe, Atty., Frank Carl E. F. Dist. The evidence is sufficient to P. Dally, Brough Daniel C. James the conviction and appearing, no error Houston, Ryan, Jr., Attys., Dist. Asst. judgment is affirmed. Austin, Douglas, Atty., Leon B. State’s Opinion approved by the Court. State.
DICE, Testifying Commissioner. as a witness in his own be- half, appellant having gone denied to the robbery; pun- The conviction is for the grocery night drive-in question on the in ishment, enhanced under Art. robbing prosecuting Ap- the witness. Ann.P.C., by prior reason of two convic- pellant further stated that his written con- capital, tions for felonies less than life duress, by fession was made under reason imprisonment. bodily harm inflicted and made threats upon by him the prosecuting witness, The Gary state’s officers. Hanks, operator Dale the Lindale Totem Appellant’s bodily injury claim of- Grocery Irvington Drive-In located at 6618 by by threats the officers was denied Offi- city Houston, in the testified that on the Parker, person cer the to the con- whom night 23, 1963, of November the made, fession was and the issue as the to came into the bought store and a soda voluntary nature of the confession was Appellant water. then took the soda water submitted the appropriate to under outside and when he returned with the instructions from the court. produced pistol, pointed
bottle he it at witness, hold-up. the said: “This is Appellant’s appeal sole contention on is your money.” witness, being Give me The admitting the court in erred the con- bodily in injury, fear of his life or serious objection fession in over his gave appellant approximately cur- in it $100 was taken after indictment in the rency robbery, After counsel, half-dollars. the absence of in violation of the appellant put money pocket, in the re- his Fourteenth Amendment to the Constitu- quired go the witness to into “walk-in tion of the United States. cooler,” companion and fled with a who In contention, appellant . had entered the store. relies certain decisions courts of confession, Appellant’s made to jurisdictions, written other including the arrest, following Officer Parker the Spano O. Court of the United in States J. York, in was offered in the evidence New 360 U.S. S.Ct. which confession he admitted com- States, robbery. mitted the 377 U.S. 12 L.Ed.2d S.Ct. objected Appellant to the introduction confession, carefully We have reviewed cases taken after was indictment conclude that counsel, presented they controlling. violation of here are not
absence of Constitu- Fourteenth Amendment to the Spano York, supra, v. New the con- tion United States. found, fession was to testimony involuntary jury, have been and the In the absence permitted stand, appel- un- conviction was not presented which showed that was der Amendment. after indict- the Fourteenth While lant’s confession made was justices separate ment, have four in two such he did not opinions present. testimony curring was of- made reference No counsel petitioner’s request denial of to consult with appellant with reference to fered questioned, such voluntary being his while the confession. nature of testimony, holding denial was not the basis for after over- objection opinion. court’s to the confes- ruled it in sion and admitted evidence. pointed that there here out It should be any re- proof appellant made is no the state Proof was quest coun- or that to confer with counsel prior alleged convictions. present ployed poor sel he made the ‘confes- or that he too employ requested sion. one or that he had appointed represent prior that one be him *3 States, supra, Massiah v. United making; of the far confession. So prosecution in federal where it was concerned, as this record is this incriminating held that statements of an at no desire for services an accused, agents obtained federal torney at the time he itWere confessed. disclosed, by surrepti- the circumstances not for I these am convinced that means, constitutionally tious not be could holdings Court against case, used him. In that federal Illinois, the United States in Escobedo v. agents, by use of transmitter installed in 478, 1758, 977, U.S. 84 S.Ct. the automobile of co- this; States, supra, indictee, listened conversation be- conviction would be reversed. tween two and testified in court incriminating pe- statements made
titioner. presented
No such are in the in-
stant case. People
The New York cases of v. Wa terman, 561, 70, 9 N.Y.2d 216 N.Y.S.2d parte Joseph Ex M. CVENGROS. People Meyer, 175 N.E.2d v. A.D.2d N.Y.S.2d appellant, applicable, are not here because Court Criminal they rights dealt with the accused under certain constitutional statutes state. Ann.C.C.P., enacted legislature provides of this used,
when a confession shall not be provision
contains no it shall not
used when obtained the absence of accused. presented,
Under the record here
court did not err in admitting the confes- Beto, Lyles
sion evidence. See:
Cir.,
(1964),
supports
our conclusion herein. judgment is affirmed.
Opinion approved by the court.
MORRISON, Judge (concurring).
I concur in the affirmance solely grounds
viction that nowhere appellant’s testimony or elsewhere any record do we find reference
any by appellant any to see any or evidence that he had em-