Burns v. State, 37516

• Decision Date: 17 February 1965
• Docket Number: No. 37516,37516
• Citation: 388 S.W.2d 690
• Parties: John Franklin BURNS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 690

388 S.W.2d 690

John Franklin BURNS, Appellant, v. The STATE of Texas, Appellee.

No. 37516.

Court of Criminal Appeals of Texas.

Feb. 17, 1965.

Rehearing Denied April 7, 1965.

Louis G. Mehr, Court appointed atty., J. R. Ramsey, Houston, for appellant.

Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Thomas C. Dunn, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

McDONALD, Presiding Judge.

The offense is murder; the punishment, death.

The evidence adduced by the state is reflected by the testimony from 10 witnesses.

On the 21st day of August, 1963, appellant, John Franklin Burns, W. H. Perkins, and Jessie J. Odum, deceased, spent a good portion of the evening going from bar to to bar, and drinking beer, in the section of Houston and surrounding areas through which the Market Street Road passes in Harris County, Texas. Perkins and appellant met about 7:30 P.M. at Jack and Betty's Lounge or Bar, in Cloverleaf community on Marker Street. They drank some beer together. Then, with another man, Franklin Gregory, they went to the Red Lantern in Greens Bayou, where they drank a beer, and then proceeded to Sand's Bar down the street, also in Greens Bayou. From there, Perkins and appellant went to Eddie's Ice House or Drive-In, also in Greens Bayou, Gregory leaving them. After about an hour to an hour and a half at Eddie's Ice House, Perkins and appellant left and subsequently stopped at 'The Place' in Cloverleaf. There, about 9:30 or 10:00 P.M., they met Jessie Odum, the deceased. The three of them left together, Odum and appellant in appellant's truck, and Perkins in his own vehicle. They went to Catfish Charlie's Place in Cloverleaf, drank a beer, spending about half an hour there. From there, they continued on to Jack & Betty's Place in Perkin's truck and drank one beer. Then, they went back to Catfish Charlie's. The car of the deceased, Odum, was at the Red Lantern. At Catfish Charlie's, Perkins let appellant and deceased out of his truck and saw them go toward appellant's truck. Then, Perkins turned back and went to the Greens Bayou Cafe. That was the last time that he saw Jessie Odum alive.

On this night, sixteen-year-old James L. Roberts, a student at Channelview High School, had gone to a dance with another boy named Vance Townsend, and a girl named Sherry Brown. The young people were in a car driven by Sherry's father, Robert Brown, on their way home, about 11:30 P.M. They were going on Highway 73, which is near Market Street, and had turned off at the exit of Highway 73, going to Channelview, proceeding in an easterly direction. This was the feeder street to Sheldon Road. Young Roberts saw a truck on the side of the road and told Mr. Brown he thought something was 'funny' back there. He had seen a man in a ditch, with another man over him. Mr. Brown backed up and, in the car lights, young Roberts saw appellant going through the pockets of a man lying in the ditch, and heard what he thought was a gurgling sound from the man in the ditch. The noise sounded as though the man had phlegm in his throat and could not get it out. The man was moaning and groaning.

Appellant, being asked what was wrong, replied that his buddy was drunk, that everything was okay, and for them to go on. They did go on. As soon as Roberts got home, he told his mother something was wrong. They called the Harris County Sheriff's Office. Then, Roberts and his brother went back to the scene and met Sheriff's Deputies. While they were waiting at the scene, from which the truck and appellant had disappeared, the appellant drove by in his truck and young Roberts pointed it out to the deputies, who followed appellant and arrested him. Appellant had blood, of the same type as that of the deceased, on his face, clothing, hands, on a knife of which he had possession, and at various spots on his truck. He had blood on his shoes. Deputies found the deceased lying in the ditch, with his throat cut from ear to ear so badly that his head almost fell off when they moved him. He was lying on top of a piece of pipe. The back of his head had been struck--a blow with some instrument. He had four mortal wounds, the cut throat, and three cuts or stabs in the left chest. The testimony as to the seriousness of the wounds was that of the Harris County Medical Examiner, Dr. Jachimczyk.

The testimony of Roberts was corroborated by that of Miss Sherry Brown.

Deputy John Klevenhagen testified that he found the deceased lying dead in a quarter-inch deep pool of blood. The witness further related: 'His throat was cut from ear to ear. It was barely holding his head on'. In response to a question as to the depth of the wound, he said: 'You could see all the way through his head. His throat was cut and his neck was cut completely through. The only thing that held his head on when we put it on the stretcher is that I had to take my hand and hold it, to keep it from falling off the body.'

Deputy Klevenhagen caught appellant about a quarter of a mile from the location of the crime, after appellant was pointed out by young Roberts. He testified as to appellant's condition--blood spattered on his face, blood on his glasses, blood over the top of his pockets, blood in his pockets where he had run his hands in his pockets, blood on his hands, blood on the soles of his boots. The deceased's pockets were turned inside out. Appellant had considerable money in his pockets when he was arrested, and stated in his confession that he had drawn $20.00 the day of the events, and only had forty-five cents left at the time of the killing. Appellant stated in his confession that he put the money which he 'got off Jessie' in his shirt pocket.

The voluntary statement of appellant was offered in evidence. Prior to it being admitted, the careful trial judge afforded appellant's counsel the opportunity of, and he fully examined state's witness, Captain M. F. Patton of the Harris County Sheriff's Office, on voir dire, out of the presence of the jury, on the facts and circumstances surrounding the taking of the confession. No question of force or coercion was raised, the appellant's counsel did inquire if appellant was intoxicated at the time that he gave the statement, and the witness responded that he was not. Appellant's counsel then stated that he objected to the confession, but he did not state upon what grounds. The trial judge then stated that he held the confession admissible. The jury was then brought in and the confession admitted into evidence and no further nor other objection was urged nor was any motion to strike made.

Appellant adduced testimony from the witness, Ruth Fowler, who testified that she owned the beer tavern on Market Street Road known as 'The Place'. She related that the deceased, Odum, the appellant and Perkins came in her place late on the evening in question and that 'they were all visibly intoxicated,' and, 'I asked them to leave.'

Appellant recalled state's witness, John Klevenhagen, who testified that appellant did not appear to have been drinking.

Officer Deckman, a state's witness, was recalled by appellant, and he testified that he did not think appellant was intoxicated, but he had been drinking, but 'he did not appear intoxicated.'

Appellant then took the stand in his own behalf and testified as to his age, personal background, relating his two marriages, his service in the navy and army and the various beer joints visited on the evening in question. He related that Bill Perkins let him and Jessie Odum, the deceased, out of his truck; that he offered to drive the deceased to his car but deceased said he wanted to go to Channelview.

Appellant related that he suggested to deceased that he take him to his car and 'then you can go from there', but deceased stated: 'Well, if people don't do what I want them to, I have means of making them do it.' Appellant said that after deceased made the foregoing statement that he decided that the best thing to do was to take him to Channelview and that he started toward Channelview, but he thought that he had a flat tire and he stopped and went around to the right side of the truck. He got his flashlight from the glove compartment, checked his tires and found they were not flat, and put the flashlight back in the glove compartment and at that time 'Jessie turned around and straightened up and looking at me all glassy-eyed, with a weird look, and he slid out of the truck with that piece of pipe in his hand.' Appellant stated that he was scared and that he did the only thing that he knew to do--'I was taught all the time in the service to defend myself.' Appellant disclaimed any knowledge of or ownership of the pocket knife which had been recovered by the officers and which had been introduced into the evidence by the state as an exhibit. Appellant said that he remembered cutting Jessie, 'trying to defend myself from him, and that piece of pipe.' He stated that the deceased swung at him with the pipe, but that he was not hit. He did not recall getting the piece of pipe away from deceased, nor did he recall hitting deceased with the piece of pipe. Appellant also testified that he was not aware of when he was cutting deceased. He stated: 'No, sir, not at first. After it was over and I left, it seemed like there was a blank space in between there, until I got to the San Jacinto River, and then I turned around and came back.' Appellant then related that he came back to the scene and the Sheriff's car and an ambulance were there; that the ambulance was just leaving and he started by real slowly; that he did not know that he had killed the deceased and that he told the officers that he had come back to take the deceased to a doctor but the officer told him that 'a doctor won't do him no good.' Appellant stated that this was the first he knew that the deceased was dead. He was then asked: 'Did you know at that time whether he had been cut?' He repl...