Butler v. State, 44220

• Decision Date: 28 February 1973
• Docket Number: No. 44220,44220
• Citation: 493 S.W.2d 190
• Parties: Franklin Lovere BUTLER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 190

493 S.W.2d 190

Franklin Lovere BUTLER, Appellant, v. The STATE of Texas, Appellee.

No. 44220.

Court of Criminal Appeals of Texas.

Feb. 28, 1973.

Rehearing Denied May 1, 1973.

John M. Anderson, Fort Worth (On Appeal), for appellant.

Frank Coffey, Dist. Atty., William W. Chambers, Grant Liser and R. W. Crampton, Asst. Dist. Attys., Fort Worth, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

The conviction is for murder where the punishment was assessed at 25 years.

This appeal presents, in part at least, the question of whether an accused in a criminal case who takes the witness stand in his behalf may be impeached through the use of an oral confession or statement not taken in compliance with Article 38.22, Vernon's Ann.C.C.P.

At the outset, it should be observed that appellant, in his ground of error, complains Only of a violation of Article 38.22, supra, and does not advance any claim that there was any violation of his federal constitutional rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), is not even cited.

The admission of an oral confession that otherwise complies with the Fifth Amendment involves no federal constitutional infirmity. The prohibition against the use of oral confessions is a matter of a state statute. Article 38.22, supra. of the testimony concerning the conversation between the appellant, who between the appellant, who was in custody, and his wife because the record reveals the Miranda warnings were given at the scene of the alleged crime and twice by a magistrate prior to the complained of statement, and the appellant has not raised, either at the trial or on appeal, any question concerning an affirmative waiver.

The undisputed evidence reflects that the deceased, Jackie Earl Nelson, died as the result of a pistol shot fired by the appellant while both the appellant's and the deceased's vehicles were moving, after appellant had begun pursuit of the deceased at a grocery store parking lot, in Tarrant County, on the night of June 6, 1969. The theory of the State's case in chief was that the appellant sought out the deceased Nelson and shot him as Nelson had, according to appellant's statement made at the scene of the alleged offense, called appellant's wife 'names'; had been giving her 'a hard time,' and had been giving him 'a little bit of trouble.'

Testifying in his own behalf, appellant related the deceased, whom he did not know, and two other boys robbed him of several hundred dollars and ran in different directions; that the deceased fled in an automobile and that he gave chase and, during the pursuit, his gun accidentally discharged, striking the deceased.

On cross examination, he denied that the deceased had called his wife names, etc., or that he had ever seen the deceased before the date of the occasion in question. He denied or could not recall any instance where boys had driven past his house and called his wife names or that he had conversation at the police station concerning such instance.

On rebuttal, over objection, Sgt. Wiggins was permitted to testify that he was present and heard a conversation at the police station between appellant and his wife three and a half hours after his arrest and that 'the conversation was about parking his boat back into his driveway some night or two previous and that he had the power beam lights on lighting up the yard and some boy came up in a white model car and called his wife an old bitch.'

This testimony was used to contradict and impeach the appellant and, in a sense, corroborate the State's theory of the case. No limiting instruction was given and none was requested.

The testimony was a direct attack upon his testimony. It was criminative and, as used, critically so.

To understand the nature of the question presented, the history of our confession statutes become important.

In Pierson v. State, 145 Tex.Cr.R. 388, 168 S.W.2d 256 (1943), part of that history is set forth, as follows:

'The admission in evidence of a confession of one accused of crime has always been controlled by statute in this state.

'Under the Code of Criminal Procedure of 1857, known as the 'Old Code', Article 661 thereof reads as follows: 'The confession of a defendant may be used in evidence against him if it appear that the same was freely made without compulsion or persuasion, must the rules hereafter prescribed.' Said Article has remained unchanged throughout the years and appears as Art. 726 of our present Code of Criminal Procedure. Article 662 of the Old Code read as follows: 'The confession shall not be used if, at the time it was made, the defendant was in jail or other place of confinement, nor while he is in custody of an officer, unless such confession be made in a voluntary statement of the accused, taken before an examining court in accordance with law, or be made voluntarily after having been first cautioned that it may be used against him.'

'Under this Article, oral confessions made in accordance with the provisions thereof were admissible in evidence. However, as to such confessions, the court stressed that great caution should be exercised because such were 'so liable to be misunderstood, so easily fabricated, and so hard to be contradicted.' Gay v. State, 2 Tex.App. 127; Riley v. State, 4 Tex.App. 538; Cain v. State, 18 Tex. 387.

'Said Art. 662 of the Old Code was later amended by adding thereto the following language: 'or unless in connection with such confession he make statement of facts or of circumstances that are found to be true which conduce to establish his guilt, such as the finding of secreted or stolen property, or instrument with which he states the offense was committed.'

'Said Art. 662 of the Old Code as thus amended appeared as Art. 750, C.C.P. of 1879, as remained unchanged until amended, by Chapter 118, Acts of the Regular Session of the 30th Legislature, in 1907, to read as follows: 'The confession shall not be used if, at the time it was made, the defendant was in jail or other place of confinement, nor while he is in the custody of an officer, unless made in the voluntary statement of accused, taken before an examining court in accordance with law, or be made in writing and signed by him; which written statement shall show that he has been warned by the person to whom the same is made; First, that he does not have to make any statement at all. Second, that any statement made may be used in evidence against him on his trial for the offense concerning which the confession is therein made; or, unless in connection with said confession, he makes statements of facts of circumstances that are found to be true, which conduct to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed. If the defendant is unable to write his name, and signs the statement by making his mark, such statement shall not be admitted in evidence, unless it be witnessed by some person other than a peace officer, who shall sign the same as a witness.' Said Chapter 118 became and is Article 727 of our present Code of Criminal Procedure. It will be noted that the outstanding element of the Amendment of 1907 was to require that the confession be in writing under certain circumstances. Since that time, an oral confession is not admissible 'unless in connection with said confession, he makes statements of facts or circumstances that are found to be true, which conduce to establish his guilt, * * *', or unless such oral confession is a part of the res gestae. Holmes v. State, 100 Tex.Cr.R. 635, 273 S.W.2d 849; Lightfoot v. State, 117 Tex.Cr.R. 515, 35 S.W.2d 163; Broussard v. State, 134 Tex.Cr.R. 1, 114 S.W.2d 248; Yarbrough v. State, 136 Tex.Cr.R. 7, 123 S.W.2d 356; Hext v. State, 104 Tex.Cr.R. 46, 282 S.W. 242.

'The legislative history thus presented shows that the legislature of this state has gradually restricted the use or admission in evidence of confessions of one accused of crime made while in jail or in custody of an officer.' 168 S.W.2d 258, 259.

Since such historical recitation in Pierson, it is observed that Article 726, C.C.P.1925, was brought forward in the 1965 Code of Criminal Procedure, unchanged, as Article 38.21, Vernon's Ann.C.C.P.1965, and former Article 727 was revised, becoming Article 38.22, Vernon's Ann.C.C.P.1965 (Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722). Said article retained the restrictions of the earlier statutes and further provided that a written confession would not be admissible unless it showed that the accused had been warned by a magistrate and also by the person taking the confession. The statute was again amended in 1967 (Acts 1957, 60th Leg., p. 1740, ch. 659, § 23) superimposing the Miranda warnings and requirement of waiver upon the statutory scheme as to written confessions. ¹ Such revision eliminated the necessity of the double warning with regard to a written confession, and authorized voluntary oral confessions made while in jail or custody under the following three circumstances:

(1) where it be shown to be the voluntary statement of the accused taken in an examining court (§ 1(a));

(2) where the accused makes an oral statement of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed (§ 1(e)); or

(3) where the oral statement was 'res gestae of the arrest or of the offense' (§ 1(f)).

Thus, the legislature has made a statutory determination that proof of extra-judicial oral confessions made while in custody are generally unreliable. This exclusion is not one of constitutional requirement. The wisdom of this legislative policy is not a matter for this court.

In the instant case, the statement made by the appellant while in jail three and a half hours after his arrest and the...