Akridge v. State, 45477

• Decision Date: 09 May 1973
• Docket Number: No. 45477,45477
• Citation: 493 S.W.2d 928
• Parties: Robert Edward AKRIDGE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 928

493 S.W.2d 928

Robert Edward AKRIDGE, Appellant, v. The STATE of Texas, Appellee.

No. 45477.

Court of Criminal Appeals of Texas.

May 9, 1973.

Lake, Delaney & Mayhan by Howard O. Lake, Houston, for appellant.

Carol S. Vance, Dist. Atty., Phyllis Bell and Jimmy James, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This appeal arises out of a conviction for murder wherein the death penalty was assessed by the jury.

Appellant's brief does not set forth separately each ground of error of which he desires to complain and, thus, is not in compliance with Article 40.09 § 9, Vernon's AnnC.C.P. See Hinkle v. State, 442 S.W.2d 728 (Tex.Cr.App.1969).

Further, it is difficult to determine just what contentions appellant seeks to advance since they are somewhat ambiguously stated in narrative form and no reference is made to any page number in this voluminous record of 1,961 pages. No citation of authority is given. Nevertheless, we have examined each contention as best we have been able to determine them.

Since the sufficiency of the evidence is not challenged, suffice it to say the appellant was shown to be the 'trigger man' in the alleged hired killing of Dr. Robert Pendleton. Companion cases arising out of the same offense are Tucker v. State, 461 S.W.2d 630 (Tex.Cr.App.1971), and Burkhalter v. State, 493 S.W.2d 214 (Tex.Cr.App.1973).

The main thrust of appellant's contentions is that his extrajudicial confession was involuntary and should not have been admitted into evidence.

Prior to admitting the confession into evidence, the trial court conducted a separate hearing out of the presence of the jury in compliance with Article 38.22, Vernon's Ann.C.C.P., and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

That hearing revealed that the 27-year old appellant was arrested in Houston by two Texas Rangers at approximately 12:45 p.m. on February 10, 1968 by virtue of a warrant from Newton County where appellant had been indicted for cattle theft. ¹ He was taken before Justice of the Peace Lee in Harris County and, at 2:52 p.m., was informed of the cattle theft accusation and was administered warnings in accordance with Article 15.17, Vernon's Ann.C.C.P., and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Appellant was then taken by the arresting officers to Newton County and placed in jail at approximately 6 p.m. on the same date. During the trip to Newton County, which consumed several hours, there was no interrogation of the appellant nor was any mention made of the instant murder charge. Appellant slept an hour or so during the trip, ate a sandwich, and consumed a soft drink.

At 7:30 p.m., appellant was taken before Justice of the Peace Rowe of Newton County and was informed of the instant murder charge, and warned in accordance with Article 15.17, supra, and the Miranda decision.

Neal Rogers and Neal Matthews, Harris County Sheriff investigators, then commenced to interrogate the appellant and did so for approximately an hour and fifty minutes. From approximately 10 p.m. to 12:15 a.m., the appellant was questioned by Officers Cornett and Holt of the Pasadena Police Department. Prior to this questioning, Officer Cornett warned the appellant in accordance with Article 38.22, supra. Cornett testified that the appellant, who had earlier signed a form to indicate an understanding of his rights, stated orally that he did not want a lawyer. During this period of interrogation, the appellant denied the killing but made some admissions indicating guilty knowledge.

Ellis Means, Chief of the Pasadena Police Department, began interrogating the appellant at approximately 12:30 a.m. on February 11th. He was later joined by Ranger Neal. About 1:15 a.m., the appellant, who had had a sandwich at 9 p.m., was given a cup of coffee. Then, near 2 a.m., the appellant told Means and Neal about his involvement as the hired killer of Dr. Pendleton. Other officers were then summoned and appellant repeated his story. Officer Cornett then made longhand notes as the appellant recounted his story a third time.

Newton County Sheriff Humphries testified that, after he took the appellant to his cell around 2:30 a.m., the appellant told him that he (the appellant) felt like a different person now that he had gotten 'his business straight' and 'everything was clear.' Appellant went to sleep about 3 a.m.

At 9 a.m. on February 11th, the appellant was awakened. He was later shown a typed copy of the confession he had given the officers. He was again warned by Officer Cornett in accordance with Article 38.22, supra. Appellant read the confession containing the warnings required by Article 38.22, supra, and Miranda, made a correction as to his address, initialed some typographical errors, and signed the threepage confession at 10:30 a.m.

In addition to the warnings as to the right to silence, right to retained or appointed counsel, etc., contained on the face of the confession there were the following statements:

'. . . and I now freely and voluntarily waive my right to a lawyer and to remain silent and make the following voluntary statement . . ..'

and

'While making this statement I have not asked for nor wanted the presence or advise (sic) of a lawyer. At no time during the making of this statement did I ask to stop or want to stop making this statement.'

All of the officers testified they did not abuse or mistreat the appellant nor see anyone else do so. They related the appellant sometimes appeared nervous during interrogation, but was mentally alert, not overly tired, etc.

Carol Vance, Harris County District Attorney, testified that he arrived in Newton County and talked alone with the appellant after the signing of the confession, that the appellant denied being mistreated and said, 'No, they have been kind to me.' Vance saw no marks or bruises on the appellant.

At the conclusion of the separate hearing, at which the appellant did not testify, the court made detailed findings of fact and conclusions of law finding the confession to have been voluntarily given and admitted the same into evidence.

After the confession had been admitted into evidence before the jury, the appellant, testifying in his own behalf, generally corroborated the sequence of events related at the separate hearing, but testified one member of each of the three interrogation teams was nice to him while the other would physically abuse him. He related Investigator Rogers 'kneed me in my stomach and in my privates' and said 'if I threw up, he was going to make me lick it up'; that Officer Holt stepped on his toes, hit and kicked him; that Chief Means kicked his knees, judo chopped him on the neck, kicked him in the stomach and threatened to take him to the woods and say that he tried to run. He testified he 'couldn't stand the whipping any more' and gave the officers the statement which he didn't sign until the next morning.

On cross-examination, the appellant, who had previously received a five-year probated sentence in California, admitted he had no bruises as a result of the beatings he received, but attributed this to his thick Levis (trousers) and the fact that he was not struck in the face.

In rebuttal, the State called each of the officers accused and each specifically denied having performed the acts testified to by the appellant. District Attorney Vance again testified. Also, Lloyd Pearson, a KTRH Radio reporter, testified he had interviewed the appellant in the Harris County Jail on February 12, 1968, and that the appellant denied being mistreated and stated he had given a voluntary statement.

The issue of the voluntariness of the confession was submitted to the jury under instructions of which appellant made no complaint.

Appellant first contends that the confession was inadmissible because the warnings given by Justice of the Peace Rowe were not in accordance with Article 15.17, supra, in that he was never warned of the actual charge against him or the name of the alleged victim. The testimony of Judge Rowe, and several of the officers, was to the effect that the Judge had advised the appellant of the 'murder charge.' This testimony was undisputed at the separate hearing on voluntariness and the trial court made a finding to this effect.

Appellant apparently bases his claim upon his testimony before the jury that he was not so advised by Judge Rowe. He acknowledged, however, that prior to any interrogation by the officers they informed him of the murder charge against him.

Even if the warnings administered by Judge Rowe were not in compliance with Article 15.17, supra, for the reason claimed, the same would not vitiate the confession. A similar contention was advanced in Easley v. State, 448 S.W.2d 490, 492 (Tex.Cr.App.1970), where this court, noting the 1967 amendment to Article 38.22, supra, wrote:

'. . . No longer is the validity of a confession dependent under Texas statutes upon warnings by both a magistrate under Article 15.17, supra, and the person taking the confession under Article 38.22, supra. Proper warnings by either may now suffice. . . .'

See also Easley v. State, 454 S.W.2d 758 (Tex.Cr.App.1970); Dunlap v. State, 462 S.W.2d 591 (Tex.Cr.App.1971), and Shadrick v. State, 491 S.W.2d 681 (Tex.Cr.App.1973).

Appellant advances no claim that he was not properly...