Brown v. State

Citation475 S.W.2d 938
Decision Date26 October 1971
Docket NumberNo. 43685,43685
PartiesDolphus Jack BROWN, Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Blanchard, Clifford, Gilkerson & Smith, Travis D. Shelton, Lubbock, Joseph A. Calamia, El Paso, for appellant.

Blair Cherry, Jr., Dist. Atty., Thomas J. Purdom, County Atty., Alton, Griffin, Lubbock, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

Appellant was convicted of murder with malice in the 34th District Court of El Paso County following a change of venue from the 137 the District Court of Lubbock County. Punishment was assessed by the jury at 13 years.

The one count indictment charged the appellant with killing D. J. Brown and Birdie Brown, shown by the evidence to be his parents.

The appellant urges 30 grounds of error. Among these grounds of error appellant challenges the sufficiency of the evidence from the 137th District Court of Lubbock of this question will aid in placing the other grounds of error in proper perspective, we shall commence with this contention.

At approximately 4 or 4:15 a.m. on April 18, 1967, Deputy Sheriff Earl Woodard of Lubbock County received a call and went to the Brown farm near Shallowater with Deputy Jackie Knox arriving there around 4:35 or 4:45 a.m. When the deputy sheriffs arrived the appellant, his uncle, A. C. Henderson, and two ambulance drivers were present at the house. The officers found the bodies of D.J. and Birdie McCauley Brown. The lower portion of Mrs. Brown's body was on the bed, but the upper portion was off the bed with her head resting on a blood soaked pillow on the floor. She was clothed in a nightgown. The body of D. J. Brown was lying face down on the floor close to the doorway leading into the hall. He was wearing undershorts. As the autopsy reports subsequently showed, both individuals had been brutally beaten on the head with a blunt instrument and had died as a result of brain damage inflicted by the beatings. The instrument used was never found.

The appellant told the officers the house was locked when he came home around 4 a.m. from playing poker and discovered the bodies of his parents; that he had then called his uncle who in turn called the sheriff's office. The deputies noted there was no sign of forced entry and only one window was open four or so inches with the screen latched. The front door was bolted from the inside. They did observe a broken lamp in the bedroom where the bodies were found, a full pot of stew or soup on the kitchen stove and a man's wedding band with three pennies lying in the kitchen cabinet. In the bedroom they found a pair of pants containing an empty gold money clip, some car keys, loose change and a billfold with three dollars in it. These items were turned over to the appellant. The Justice of the Peace arrived shortly after 6 a.m. to conduct an inquest. After the bodies were taken to a funeral home he departed about 8 a.m.

The deputies left around 5:30 to 6 a.m. to talk to the individuals with whom the appellant claimed to have been playing poker.

At approximately 8:30 a.m. Chief Deputy Sheriff Lee Rice and Deputy Jackson arrived at the Brown house and found it locked, the Justice of the Peace having departed 30 minutes or so before. These officers then attempted to locate Clyde Fowler, appellant's uncle, and returned to the house shortly thereafter with Esdell Merrell, a relative of the deceased Birdie Brown who had a key to the house. They were unable to open the door with the key and Rice than crawled through a window and opened the kitchen door.

While they were there Deputies Woodard and Knox returned about 10 or 10:30 a.m. and Knox found a brown colored shirt in a clothes hamper near the bedroom. The shirt had on it two tiny spots of what appeared to be blood.

Shortly after noon the appellant and his uncle, Clyde Fowler, went to the District Attorney's office at the request of District Attorney Griffin. The interview which followed was attended by Deputy Rice and Texas Ranger Wilson.

The appellant was not given any warning, but was informed by Griffin that he was not under arrest; that the authorities had be begin their investigation into his parents' deaths somewhere and wanted to talk to him. Appellant then voluntarily agreed and proceeded to give the District Attorney an outline of his activities during the previous day and night. The 25 year old appellant related he picked up a girl, Anita Roberson, about 3 or 3:15 p.m. and checked into a Lubbock motel around 3:40 p.m. After staying at the motel awhile the couple then drove in his pickup awhile to the Brown home near Shallowater but the visit was relatively short. No one was at the house and his father was in the field. They returned to the motel where the appellant left the girl. He then drove back home, changed shirts and informed his parents of his intentions to play poker that night. At this time he related his mother was wearing a short housecoat and his father was dressed in coveralls. When he left he took the family car rather than the pickup and drove back to the motel, arriving around 7:30 p.m., and went from there to a private home in Lubbock for the poker game where he played poker until 2 a.m. or so with the exception of a break of one hour when he returned to the motel and ate a sandwich. At 3 a.m. or so he revealed he checked out of the motel, took the girl home and drove to the house at Shallowater where he discovered the bodies.

When shown the brown shirt found by Deputy Knox he identified the shirt as his and admitted wearing it on April 17th until such time as he went home to change shirts between 5 and 7 p.m. He denied any knowledge as to how bloodspots had gotten on the shirt. When asked if he had changed other wearing apparel he slapped his leg and said, 'No, these are the same pants I had on all day yesterday.'

At the conclusion of the interview the appellant left the prosecutor's office with his uncle.

Deputies Rice and Jackson returned to the Brown residence that afternoon and cut pieces of carpet out of the hallway and bedroom which appeared to have blood on it. These items were sent to the Department of Public Safety for analysis.

Around 1:30 or 1:45 p.m. on April 18 Arthur Shelton, an employee at MacKenzie State Park in Lubbock, discovered the arm of the park's 'Dempsey Dumpster' trash receptacle was broken. Looking into the receptacle he saw a bedspread, then a plastic bag with some bloody clothes in it, wet and bloody washcloths, towels and a pair of trousers with blood on them. The bundle was turned over to the sheriff's office.

Among the clothing was a dress which was identified as the dress Birdie Brown had been wearing on April 17 and a pair of coveralls which appeared to be the ones D. J. Brown had been wearing on the same date. In the pocket a gas credit card bearing his name and a cigarette lighter bearing the inscription of the Brown's Insurance Agency which was owned by the deceaseds were found. Both the dress and coveralls had been cut down the back from top to bottom. A wet bloody towel bearing the first initial of appellant's last name and the last four digits of his Army serial number was also found as were some washcloths.

Carol Cochran testified she had made a $200 loan to the appellant some two years prior to the alleged offense while both were in Germany, and that the loan had never been repaid despite the fact that appellant had promised her as late as a week or so before April 4, 1967, to send her a check. She related that in her efforts to contact the appellant concerning the loan she had telephone conversations with his mother, one of the deceaseds, on April 4 and again on April 17, 1967, the date of the alleged offense.

The deceaseds were shown to have eaten their noon meal in a Shallowater cafe on April 17 and about 1 p.m. the cashier observed that D. J. Brown had $18.00 and a number of other bills contained in the gold money clip which was found empty the next morning near the bodies.

A Lubbock private club waitress testified appellant had asked her to change a $20.00 bill on the morning of April 17, 1967, but had then charged the drinks he had that day.

It was shown by other evidence that when he registered at the motel around 3:40 p.m. he offered to pay when he checked out. Upon the clerk's refusal, appellant produced a credit card and charges were placed against the same. When he checked out around 3 a.m. the appellant paid cash and retrieved the credit card charges.

It appears from the testimony the appellant needed at least $20.00 to get into the poker game. At one point another player bought appellant's chips, giving him a $100 bill for which appellant returned $35.00 in change which would indicate the chips were worth $65.00. The appellant was described as neither a big winner nor loser and the evidence would reflect the appellant had somewhere between $55.00 and $100.00 when he came to the game about 8 p.m.

The pathologist who performed the autopsies after the bodies had been embalmed testified he could not fix the exact time of death of either of the deceaseds with any degree of certainty.

The witness Casey testified she telephoned the Brown residence two times around 8 p.m. on April 17 and never received an answer.

The grand jury foreman testified the grand jury which returned the indictment was unable to determine the manner or means or the weapon or weapons used in the killings.

The appellant who did not testify relied upon alibi testimony. He calls attention to testimony showing he picked up Anita Roberson around 3:15 p.m. on April 17, checked into the motel around 3:40 p.m., was at his parents' home with Anita around 5 p.m. but stayed only a few minutes. Appellant points to Bruce Dillard's testimony that he saw the appellant and Anita at a liquor store east of Lubbock between 7:30 and 8 p.m. on April 17; that the poker players...

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