Brown v. State

• Decision Date: 20 September 1978
• Docket Number: No. 3,No. 55060,55060,3
• Parties: Marvin Edward BROWN, Jr., Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 36

576 S.W.2d 36

Marvin Edward BROWN, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 55060.

Court of Criminal Appeals of Texas, Panel No. 3.

Sept. 20, 1978.

On Rehearing Jan. 24, 1979.

Cliff Preslar, El Paso, for appellant.

Steve W. Simmons, Dist. Atty. and Douglas Gelo, Asst. Dist. Atty., El Paso, for the State.

Before DOUGLAS, ROBERTS and DALLY, JJ., and KEITH, Commissioner.

OPINION

QUENTIN KEITH, Commissioner.

Appellant was charged by indictment with conspiracy to commit capital murder for the promise of remuneration, and the charging portion of the indictment is set out in the margin. ¹ He went to trial jointly with the co-conspirators mentioned in such indictment upon his plea of not guilty. The jury found him to be guilty as charged and the court assessed his punishment at confinement for eighteen years. ²

During the afternoon of August 18, 1975, Edgar Earl Williams was murdered by one or more persons whom he encountered in his home in El Paso. He was shot by two different pistols and death was caused by the bullet which entered the right temporal region and destroyed a large part of the brain.

While in his garage a few doors from the residence of the deceased on the date of the murder, Michael Ramirez heard "popping" sounds which he took to be an automobile backfiring. He said there were four such shots very close together in point of time but he observed nothing unusual.

A little later on that afternoon Lorna Landry was driving down the street in front of deceased's residence and saw something unusual in the front yard. She turned her vehicle around and went to the scene observing the body of a black male lying in the front yard who had been shot. She had been there only a few minutes when Ruby Williams, widow of the deceased, came up screaming and repeating, "What have they done? What have they done?" In a few minutes the police arrived and she left the scene.

Debra Ducre, a long-time acquaintance of appellant and Christmas, testified that around two or two-thirty in the afternoon of August 18 she and her boy friend Herby were visiting in appellant's apartment. While there, she saw appellant, Christmas, and Anderson talking in the bedroom of the apartment and saw Christmas' automobile outside. Shortly thereafter, the three men and the Christmas vehicle were gone from the apartment.

Jo Jo Pickard told of a conversation a few days before the murder wherein appellant said: "On the way home he said some person, a man look in the newspaper, a man would be dead, or something like that."

El Paso police officer Tubbs testified that he had known the deceased for many years and had actually kept the two pistols offered in evidence while the deceased served a tour of duty with the army in Korea.

The State offered two scientific experts from the Federal Bureau of Investigation in Washington who testified as to their examination of certain items of physical evidence, including the pistols, shell fragments, etc. The results of the examinations were inconclusive and their testimony lends little support to the verdict. ³

Appellant did not testify or offer any evidence in his behalf but now challenges the admission of his confession, claiming that it was the result of an illegal arrest and detention. By four other grounds of error, he contends that the evidence was insufficient to sustain the conviction in that it was insufficient (a) to prove the commission of an overt act by a conspirator; (b) corroborate the statement of the alleged co-conspirator; (c) to corroborate appellant's confession; and (d) to prove all of the allegations in the indictment.

The fifth ground of error, challenging the admission of the confession, will be addressed at the outset. If the confession was improperly admitted, the cause must be reversed as there was, admittedly, insufficient evidence absent the confession to submit the cause to the jury.

Detective Bonilla of the El Paso Police Department began the investigation of the murder on the afternoon of its occurrence. As the investigation proceeded, appellant became a suspect but Bonilla did not feel that he had probable cause for his arrest. On August 27, El Paso police arrested appellant, a soldier stationed at Fort Bliss, for being A.W.O.L. and he was questioned by Bonilla before being turned over to military authorities. ⁴

Appellant remained in military custody until shortly before midnight on September 10 the military authorities returned appellant to the custody of the city police where he and the other suspects were questioned separately. From about one until four in the morning, Bonilla and other officers discussed the murder with appellant before he began his confession. He was warned repeatedly by Bonilla of his Miranda rights, and the form upon which the confession was typed contained the warnings required by V.T.C.A., Code of Criminal Procedure, Art. 38.22 (1966), and Miranda. Several mistakes were made and each was initialed by appellant and each page bore his signature. The confession was completed after nine in the morning, but not until after the completion of the confession was appellant taken before a magistrate.

The trial court conducted an extensive Jackson v. Denno type hearing and appellant did not testify then nor did he offer any evidence at such hearing. At the conclusion of the hearing, the trial court filed elaborate findings of fact and conclusions finding that the confession was voluntary and admissible in evidence.

Appellant contends that the court erred in admitting the confession because it was the result of "an illegal arrest and illegal detention." We disagree. As stated in Myre v. State, 545 S.W.2d 820, 824 (Tex.Cr.App.1977):

"The fact that appellant was not taken before a magistrate until after he gave his statement does not vitiate a confession that is otherwise properly obtained. Unreasonable delay in bringing an accused before a magistrate only renders the confession inadmissible upon a showing of some causal connection between the delay and the making of the confession.

There is no such showing here. Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975); Lester v. State, 490 S.W.2d 573 (Tex.Cr.App.1973)."

There is no error shown in the admission of the confession and ground five is overruled.

In the abbreviated version of appellant's confession, we reproduce only the highlights. Appellant grew up and went to public school in El Paso where he knew the co-conspirators, Anderson and Christmas. His father's half-sister, Ruby Williams, was married to the deceased and he was well acquainted with the Williams family. About July 21, 1975, Ruby called appellant's home, telling his wife that she needed to talk to appellant but he did not return the call. The next day Ruby called again and appellant talked to her on the telephone. We repeat his version of the conversation.

"When I talked to my aunt, Ruby Williams, on the telephone she told me, 'Junior, I want you to do something for me. It's very important.' I then said, 'Okay.' 'I need somebody to take care of Earl.' I then said, 'What do you mean?' She then said, 'You know what I mean.' I then said, 'Okay, but when,' realizing at this time that she wanted to get my uncle Earl killed. She then said, 'Now. As soon as possible.' I then asked her 'Where is he?' She stated, 'He's at work now,' and at this time told me, 'I mean it,' and then at the time hung up the phone. About two or three days went by, and I did not hear from my aunt Ruby. And Andre Christmas then came to my apartment; and I at this time told Andre if he wanted to make some money, and this would be by killing Earl Williams, as requested by my aunt. And Andre Christmas, who was living with my uncle's daughter, and they have one child, knew who I was talking about. Andre Christmas, then, asked how much he would get out of it, parenthesis, meaning money. I then told him that he would get somewhere between two hundred and fifty dollars and five hundred and fifty dollars correction, two hundred and fifty dollars and five hundred dollars. As I told him he would get half of what I got, as I was going to be in it with him. Andre Christmas then said, 'Okay, but get some front money.' I told Andre that I would contact my aunt and ask her for some front money, meaning a down payment, in parenthesis. Andre was at this time sitting in the living room. He and I then went to the bedroom and called my aunt Ruby Williams, and that this was sometime around two-thirty p. m., and I called her at home. I then told my aunt that it could be done, parenthesis, meaning that I had somebody that would kill my uncle, Earl Williams, but that it was going to cost her the whole thousand dollars, in parentheses the figures one thousand, and that I needed two hundred and fifty dollars down, two hundred and fifty dollars then. I then told her it would be done if she really wanted to get it done, and she said, 'Okay.' "

A few days later, Ruby Williams sent some money to appellant by her daughter Betty Jean Thomas and it was kept by appellant who, apparently, did not get in touch with Christmas. About a week later, Anderson "came into town" and appellant says, "I at this time told Vernon (Anderson) what my aunt had hired me to do . . . . A job, and hired someone to kill her husband. . . . And then if he would go on it with me that I would split the money with him. I did not tell Vernon Anderson . . . that I had already made the same deal with Andre Christmas . . . (or) that my aunt Ruby Williams had already given me part of the money . . . two hundred and fifty dollars, as front money for down payment . . . ."

The confession continued with appellant telling of how Anderson agreed to "kill my uncle for the four thousand dollars." Appellant told of setting up an alibi and named Debbie Ducre as one of his witnesses. He denied participation in the murder but says that the day after the murder Anderson came to his home and continued: "So, it took...