Bass v. State

• Decision Date: 23 September 1975
• Docket Number: No. 49937,49937
• Citation: 527 S.W.2d 556
• Parties: Clifton Glenn BASS et al., Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 556

527 S.W.2d 556

Clifton Glenn BASS et al., Appellants, v. The STATE of Texas, Appellee.

No. 49937.

Court of Criminal Appeals of Texas.

Sept. 23, 1975.

Walter R. Grimes, Houston, for Bass.

Thomas D. White, Houston, for Coleman.

Charles S. Szekely, Jr., Houston, for Haynes.

Carol S. Vance, Dist. Atty., Joe S. Moss, James C. Brough and George Jacobs, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

These appellants were jointly tried and convicted of the offense of murder with malice, which occurred on February 18, 1972. The jury assessed punishment for appellants Bass and Haynes at life imprisonment and assessed appellant Coleman's punishment at twenty (20) years in the Department of Corrections.

At the outset we are confronted with a common ground of error--that the trial court reversible erred in admitting into evidence the extrajudicial confessions of the other non-testifying appellants, thereby depriving them of the right of confrontation guaranteed by the Sixth Amendment, United States Constitution. See also Artice I, Sec. 10, Texas Constitution. Reliance is had upon Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

Prior to the joint trial the appellants urged severance on the ground that each had made written statements and the State intended to use the same. The motions were denied. After the separate hearing on the voluntariness of the confessions, the severance motions were again reurged and again denied.

Subsequently, when the confessions were offered before the jury, the appellants again strenuously objected, citing Bruton to the trial court. The objections were overruled, and the confession of each appellant was admitted into evidence.

It is well established as a general rule that a confession of guilt can only be used against the person giving the confession and is inadmissible against others under the hearsay rule. See Schepps v. State, 432 S.W.2d 926, 940 (Tex.Cr.App.1968); Carey v. State, 455 S.W.2d 217 (Tex.Cr.App.1970); Evans v. State, 500 S.W.2d 846 (Tex.Cr.App.1973); Hearne v. State, 500 S.W.2d 851 (Tex.Cr.App.1973); Ex parte Smith, 513 S.W.2d 839 (Tex.Cr.App.1974); Lewis v. State, 521 S.W.2d 609 (Tex.Cr.App.1975); McCormick & Ray, Texas Law of Evidence, 2nd ed., Sec. 1219, p. 96; 24 Tex.Jur.2d, Evidence, Sec. 667, p. 272.

In Bruton v. United States, supra, the United States Supreme Court, overruling Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), held that despite instruction to the jury to disregard the implicating statements in determining the co-defendant's guilt or innocence, admission At a joint trial of a defendant's extrajudicial confession implicating a co-defendant violated the co-defendant's right of cross-examination secured by the confrontation clause of the Sixth Amendment. And in Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968), the Supreme Court held that the Bruton decision was not only applicable to the State proceeding, but that the decision was fully retroactive.

While a Bruton error is one of constitutional dimension, we do know that such error can, under some circumstances, be harmless constitutional error. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). See also Ex parte Smith, supra; Carey v. State, supra.

Despite the court's subsequent instructions to the jury in its charge to consider each confession only against the defendant making the same, we conclude, in light of Bruton, that the court erred in admitting the confessions. We must now determine whether such error was harmless or not as to each appellant.

Mary Simmons, wife of the deceased, Hubert Simmons, testified she and her husband were at a Billups Service Station in Houston on February 18, 1972, where her husband was employed. In the early morning hours, shortly after midnight, she awakened on a cot in a back room when two men began attacking her husband. She identified the two as the appellants Bass and Haynes. When she got up, Haynes began to beat her with a ladder and broke a chair on her until she fell and played dead. Bass then told Haynes to get a gun out of a drawer, where the husband kept his, and when Haynes brought it to Bass she heard Bass say, 'I am going to get him. I want to kill him anyhow.' She then heard two shots fired. She had earlier observed her husband's condition and knew he was unconscious. While the record was not clearly develped, it appears the witness Simmons was shot before Bass and Haynes left the station. The witness then made her way to the front of the station and yelled for help, etc. Two officers nearby heard her cries and pursued the two fleeing men. Mary Simmons identified the appellant Bass when he was returned to the scene and identified the pistol shown to her as the weapon taken from the station. It was found on Bass.

Houston Police Officer R. J. Matthias related that on the occasion in question he was across the street from the service station when he heard Mrs. Simmons holler there had been a robbery, etc., and observed Bass and another male running. He immediately apprehended Bass, who stated he had 'just robbed the station and shot the attendant . . ..' When Matthias returned to the station, he observed a broken chair, an overturned stepladder, a broken 7-Up bottle with blood on it and two bullet shells.

Officer Hensen, who was with Matthias when the witness Simmons hollered, identified appellant Haynes as being close to the door of the station at the time. He pursued Haynes into a wooded area and lost sight of him. Without detailing all the other action, Haynes was apprehended in the area by other police units. Haynes' fingerprints were found on the 7-Up bottle found in the station.

Houston Police Officer Wood arrived in the area after receiving a police broadcast. While there, he observed the appellant Coleman drive into an apartment complex parking lot with his auto lights off. He stopped Coleman, but decided to let Coleman go when he stated he lived in the complex although he did not have a driver's license and appeared to have been drinking intoxicants. Twenty minutes later, the officer saw Coleman driving again and stopped him and arrested him.

All the appellants were taken to the police station, where they gave confessions. These confessions were admitted over objection.

Appellant Bass' confession, omitting the warnings, signature and other formal parts, reads:

'My name is Clifton Glenn Bass and I am a colored male 20 years old and I live on Guest Street. Tonight at about 6:00 P.M. I borrowed my sisters car and this is a Comet, blue in color. The car may have been green as I am not sure. When I borrowed the car two other people that I know as RICKY and HAYNLEY were with me at this time and we started to drive around and we all went to the club on Crane Street and there we drank several beers and shot some pool in the place and then we left and I went to Pickfair Street and there I saw my son who stays there with another woman. When we left there we drove around some more and I was driving and I started to think that my kids had nothing and that I needed some money and I was am not working now and I was broke. The first thing that I thought about was hitting some place and we all drove around looking for some place to hit. We drove by the BILLIPS station on Jensen Drive and I thought that this would be a good place and we drove down the street and I let RICKY drive the car and he let me and Haynley out down the street from the station and we walked back to the station. We both went into the station and I bought a bottle of soft drink and then I hit the man at the station who is the manager and I hit him over the head with the bottle and this knocked him to the floor. At this same time Haynley was in the back part of the room where a woman was on the bed and when I hit the mna (sic) she started to hollor (sic) and then Haynley hit her over the head with a tire tool. At this time I was getting the money from the cash drawer and Haynley told me that there was a gun in the drawer and I got the gun out of the drawer and the manager was still laying on the floor and Haynley told me not to shoot the man but for some reason I shot him any way. I shot the gun two times as I was not sure that I had hit him with the first shot. Then both men and HAYNLEY left the station and run to the right on Jenson drive and then a short way up the street about two blocks the police caught me. I am now in the Homicide office and am giving this statement to Det D. R. SPURLOCK and Det Spurlock explained me (sic) rights to me and I was also given a warning by the officer that arrested me R. J. MATTHIAS. I just was told by Det Spurlock that the man that I know as HAYNLEY is really KELSO HAYNES. I can read the english language and I have read this statement and find that it is true and correct.'

Likewise, appellant Haynes' confession reads:

'My name is KELSO HAYNES and I am a colored male 22 years old and I live at the South Park area of town and I don't know the address. Tonight at about 7:30 P.M. me and Clifton and Rickey were together and Clifton borrowed a car from his sister and we started to ride around and drink some beer. We then went to a place on Crane Street and drank some more beer and shot some pool and I got tight and went to the car and went to sleep. I was woke up when the car run into a ditch on SCHILLER street or Curry Street I do not know which one. We could not get the car out of the ditch and Clifton and RICKY went to get some help while they were gone I took the jack and got the car out of the ditch. Then Clifton started to talk about hitting a place and I tried to...