Chase v. State, 46796

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Citation: 508 S.W.2d 605
• Docket Number: No. 46796,46796
• Parties: Michael Edward CHASE, Appellant, v. The STATE of Texas, Appellee.
• Decision Date: 16 January 1974

Page 605

508 S.W.2d 605 Michael Edward CHASE, Appellant,
v.
The STATE of Texas, Appellee. No. 46796. Court of Criminal Appeals of Texas. Jan. 16, 1974.
Rehearing Denied May 15, 1974.

Emmett Colvin, Jr. and Lawrence B. Mitchell, Dallas (both on appeal only) for appellant.

Henry Wade, Dist. Atty., W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for murder. Penalty was assessed by the jury at life.

While the sufficiency of the evidence is not challenged, a brief recitation of the events which give rise to appellant's grounds of error is deemed necessary in order that appellant's contentions may be discussed with greater clarity.

Page 607

Appellant, a seventeen-year-old high school student, lived with his parents in Dallas.

The appellant and the deceased, a schoolmate, attended a party on the night of August 21, 1970. The deceased was to spend the night with appellant and they left the party together. Appellant's parents were away from home for the night.

On August 24, 1970, the body of the deceased was found on the bank of the Trinity River. The body was encased in a green sleeping bag. A large rope was bound around the body.

Appellant gave officers a written statement on September 4, 1970, that deceased had been at his home on the night of August 21, 1970.

On September 10, 1970, at a time when the State contends that its investigation had not focused on appellant, a search was made of appellant's home without a warrant.

On September 14, 1970, an arrest warrant issued and appellant was taken into custody. A short time after his arrest, appellant made an oral confession to officers.

On October 7, 1970, a search warrant was obtained and appellant's home was searched for the second time.

At the outset appellant contends that the trial court lacked jurisdiction over the appellant in that Article 2338--1, Vernon's Ann.Civ.St., denied the appellant the equal protection of the law guaranteed by the Fourteenth Amendment to the Constitution of the United States in establishing a different age requirement for conferring juvenile jurisdiction for males than females.

Appellant, a seventeen-year-old male at the time of the alleged offense on August 22, 1970, urges that had he been a female rather than a male, the applicable law ¹ at the time in question would have required that the case pending against him be transferred to the juvenile court.

This court's decision in Ex Parte Matthews, Tex.Cr.App., 488 S.W.2d 434, is dispositive of appellant's contention. While Ex parte Matthews, supra, held that the disparity in the age classification between males and females was unconstitutional, this court went on to hold that every person was amenable to punishment under the Penal Code (Article 29, Vernon's Ann.P.C.) except persons under the age of fifteen (Article 30, Section (a)(1), V.A.P.C.) after excising the seventeen-eighteen year old classification from Article 2338--1, V.A.C.S., and Article 30, V.A.P.C. Thus, the court had jurisdiction of appellant in the instant case. See Hill v. State, Tex.Cr.App., 504 S.W.2d 484 (1974).

Appellant contends that the court erred in admitting an oral confession in that such confession did not comply with the requirements of Article 38.22, Section 1(e), V.A.C.C.P.

Appellant urges that while his oral confession may have been explanatory it did not lead to any of the instrumentalities of the crime and is therefore inadmissible.

The pertinent portion of Article 38.22, V.A.C.C.P., provides:

'1. The oral or written confession of a defendant made while the defendant was in jail or other place of confinement or in the custody of an officer shall be admissible if:

Page 608

'(e) It be made orally and the defendant makes a 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.'

Pursuant to an arrest warrant, appellant was taken into custody on September 14, 1970. After being arrested at the school he was attending, officers read appellant the 'Miranda' warnings and, according to the officers, appellant stated he understood them. After entering the squad car, appellant made an oral confession in which he stated that a bayonet was the murder weapon; that a rope was taken from the carport at appellant's home which was used to bind the deceased; that the plywood board found with the body was a table top that came from his younger brother's room and that the sleeping bag the body was found in belonged to a friend.

After arrival at the sheriff's office, appellant was taken before a justice of the peace and from there to an interview room where the oral confession continued. Appellant stated that he and the deceased went to appellant's home after a party. According to Officer Williamson, appellant related that he and the deceased had an argument, but appellant would not talk about the incident surrounding the death of the deceased. Appellant stated that when he awakened the next morning, he found the deceased lying on the floor; that appellant went to the carport and got a sleeping bag and the rope and after placing the deceased in the sleeping bag he dragged the body to a tin shed behind the house.

Later, appellant returned to the shed, placed the deceased in the bed of a pickup, covered the body with a piece of plyboard and drove to the river. Upon arrival at the river, appellant placed the deceased on the plyboard and dragged deceased to the water. After deceased was placed in the water, appellant put the plyboard over him.

Appellant argues that the officers already had all of the instrumentalities of the crime in their possession and nothing was recovered as a result of the oral confession. The sleeping bag and the plyboard were found with the body. A piece of rope and the bayonet were recovered in the officers' search of appellant's home on September 10, 1970.

In Ashley v. State, Tex.Cr.App., 362 S.W.2d 847, cert. denied 372 U.S. 956, 83 S.Ct. 955, 10 L.Ed.2d 10, defendant contended that no proper predicate had been laid authorizing the admission of an oral statement because the officers already had the deceased's automobile in their possession. After defendant's arrest, defendant's purse was emptied on a desk and defendant stated that keys emptied therefrom belonged to deceased's automobile. The keys were subsequently sequently determined to fit deceased's automobile. This court found that such evidence was sufficient to show that the automobile had been under the control and in the possession of the defendant. The court went on to hold that the oral statement made at the time defendant identified the keys as belonging to deceased's vehicle was, under the facts and circumstances of the case, authorized to be admitted into evidence.

In Valtiero v. State, 153 Tex.Cr.R. 260, 219 S.W.2d 73, where a hat belonging to the victim was discovered by following the defendant's directions, this court said:

'The facts here present demonstrate that facts and circumstances may be stated by an accused which unquestionably are inculpatory and conduce to establish his guilt, and yet neither lead to the recovery of stolen property, or the instrument with which the offense was committed.'

The facts found to be true must be incriminating. Shelton v. State, 168 Tex.Cr.R. 432, 328 S.W.2d 445. When the facts or circumstances asserted have not led to the discovery of items or information

Page 609

previously unknown to the State, confessions have been held inadmissible. Taggart v. State, 149 Tex.Cr.R. 91, 191 S.W.2d 728; Willoughby v. State, 87 Tex.Cr.R. 40, 219 S.W. 468; Baggett v. State, 65 Tex.Cr.R. 425, 144 S.W. 1136. When, however, the statement of the accused has led to the discovery of items or information not theretofore discovered by the State, the 'found to be true' requirement of Article 38.22, Section 1, V.A.C.C.P., has been satisfied. Wilson v. State, Tex.Cr.App., 473...