415 S.W.2d 654 (Tex.Crim.App. 1965), 37483, Clewis v. State

Docket Nº:37483.
Citation:415 S.W.2d 654
Party Name:Marvin CLEWIS, Appellant, v. The STATE of Texas, Appellee.
Case Date:October 04, 1965
Court:Court of Appeals of Texas, Court of Criminal Appeals of Texas
 
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Page 654

415 S.W.2d 654 (Tex.Crim.App. 1965)

Marvin CLEWIS, Appellant,

v.

The STATE of Texas, Appellee.

No. 37483.

Court of Criminal Appeals of Texas.

October 4, 1965

Rehearing Denied Nov. 10, 1965.

As Amended on Denial of Second Motion for Rehearing Jan. 5, 1966.

Certiorari Granted Oct. 10, 1966. See 87 S.Ct. 104.

On Remand June 7, 1967.

Legg, Saxe & Baskin, by Reagan H. Legg, Midland, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The conviction is for murder; the punishment, twenty-five years.

The state's evidence shows that on July 5, 1962, the skeleton of a human being--which was identified by dental bridge work as that of appellant's wife, who had been missing from her home since the latter part of January--was found in a shallow grave northwest of the city of Midland, off Farm Road 868. When found, the body had the wife's brassiere around the legs and a belt, identified as belonging to appellant, around the neck.

A written statement made by appellant to deputy sheriff Gene Howell, of Midland County, on July 17, 1962, after being duly warned, was introduced in evidence as state's exhibit #13. In the statement, appellant admitted that he choked his wife to death with a belt during the latter part of

Page 655

January while the two were tussling and fighting in his truck parked on a dirt road out from Midland. He further admitted having placed her body in a hole which he dug with a shovel and covering it with sand. In his statement, appellant related that when he buried his wife the belt with which he choked her to death was still around her neck. He further stated that he 'was angry and mad' when they were fighting and that he was 'sure angry' when he was choking her.

Testimony was offered by the state that on a Saturday night in January, 1962, appellant had threatened to kill the deceased and had choked her.

Testifying as a witness in his own behalf, appellant denied having killed his wife and repudiated his written statement introduced in evidence by the state.

An issue was raised by appellant at the trial as to the voluntary nature of the written confession and its admissibility in evidence. Such issue was raised by what was termed a 'MOTION TO EXCLUDE AND SUPPRESS STATE'S CONFESSIONS,' which motion was heard by the court in the absence of the jury. After the motion had been by the court overruled, evidence was presented before the jury on the question of the voluntary nature of the confession and such issue was submitted to the jury in the court's charge, under appropriate instructions.

Appellant's first contention on appeal is that, under the record, the confession introduced in evidence as state's exhibit #13 was shown to be inadmissible as a matter of law and, for such reason, the case should be reversed.

Briefly, the evidence presented on the question of the admissibility of the confession shows that, after receiving word that his wife's body had been found and that the sheriff wanted to talk to him, appellant came from Borger--where he had been working--to Midland, on Saturday night, July 7, 1962, arriving at the sheriff's office around 11:30 p.m. After talking to deputy sheriff Kirksey for about an hour and a half, appellant was permitted to go, with instructions to return the next morning at 8 a.m. He then left the sheriff's office and went to the home of Elizabeth Johnson.

At 6 a.m., Sunday, Sgt. Jesus Morales, of the city of Midland police department, went to the Johnson home and took appellant to the police staton for questioning about his wife's death...

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