Clewis v. State, No. 37483

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtMORRISON; BELCHER
Citation415 S.W.2d 654,87 S.Ct. 104
PartiesMarvin CLEWIS, Appellant, v. The STATE of Texas, Appellee.
Docket NumberNo. 37483
Decision Date04 October 1965

Page 654

415 S.W.2d 654
Marvin CLEWIS, Appellant,
v.
The STATE of Texas, Appellee.
No. 37483.
Court of Criminal Appeals of Texas.
Oct. 4, 1965.
Rehearing Denied Nov. 10, 1965.
As Amended on Denial of Second Motion for Rehearing Jan. 5,
1966.
Certiorari Granted Oct. 10, 1966. See 87 S.Ct. 104.
On Remand June 7, 1967.

Legg, Saxe & Baskin, by Reagan H. Legg, Midland, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The conviction is for murder; the punishment, twenty-five years.

The state's evidence shows that on July 5, 1962, the skeleton of a human being--which was identified by dental bridge work as that of appellant's wife, who had been missing from her home since the latter part of January--was found in a shallow grave northwest of the city of Midland, off Farm Road 868. When found, the body had the wife's brassiere around the legs and a belt, identified as belonging to appellant, around the neck.

A written statement made by appellant to deputy sheriff Gene Howell, of Midland County, on July 17, 1962, after being duly warned, was introduced in evidence as state's exhibit #13. In the statement, appellant admitted that he choked his wife to death with a belt during the latter part of

Page 655

January while the two were tussling and fighting in his truck parked on a dirt road out from Midland. He further admitted having placed her body in a hole which he dug with a shovel and covering it with sand. In his statement, appellant related that when he buried his wife the belt with which he choked her to death was still around her neck. He further stated that he 'was angry and mad' when they were fighting and that he was 'sure angry' when he was choking her.

Testimony was offered by the state that on a Saturday night in January, 1962, appellant had threatened to kill the deceased and had choked her.

Testifying as a witness in his own behalf, appellant denied having killed his wife and repudiated his written statement introduced in evidence by the state.

An issue was raised by appellant at the trial as to the voluntary nature of the written confession and its admissibility in evidence. Such issue was raised by what was termed a 'MOTION TO EXCLUDE AND SUPPRESS STATE'S CONFESSIONS,' which motion was heard by the court in the absence of the jury. After the motion had been by the court overruled, evidence was presented before the jury on the question of the voluntary nature of the confession and such issue was submitted to the jury in the court's charge, under appropriate instructions.

Appellant's first contention on appeal is that, under the record, the confession introduced in evidence as state's exhibit #13 was shown to be inadmissible as a matter of law and, for such reason, the case should be reversed.

Briefly, the evidence presented on the question of the admissibility of the confession shows that, after receiving word that his wife's body had been found and that the sheriff wanted to talk to him, appellant came from Borger--where he had been working--to Midland, on Saturday night, July 7, 1962, arriving at the sheriff's office around 11:30 p.m. After talking to deputy sheriff Kirksey for about an hour and a half, appellant was permitted to go, with instructions to return the next morning at 8 a.m. He then left the sheriff's office and went to the home of Elizabeth Johnson.

At 6 a.m., Sunday, Sgt. Jesus Morales, of the city of Midland police department, went to the Johnson home and took appellant to the police staton for questioning about his wife's death. Appellant was questioned at intervals during the day and also on that day was visited by his sister, Annie May Owens, his mother-in-law, Rachel Garnett, and Elizabeth Johnson. There was a dispute in the testimony as to whether he was questioned after midnight, appellant swearing that he was and the officer stating that he was not.

On Monday, July 9, appellant was taken from the city jail around 7:30 a.m.,. by Sgt. Morales and Sgt. Kuykendall and the three proceeded to the place where his wife's body had been found. When appellant led the officers to the hole in the ground he stated, "I guess that is where she was buried."

From the scene, appellant was then taken to the Department of Public Safety, where he was given a polygraph examination by Officer Burl Reed. During the afternoon, appellant was questioned and late that evening he made and signed a written statement to Sgt. Morales in which he admitted killing his wife by shooting her with a gun. After signing the statement, appellant was taken before a magistrate, when bond was set, and in default of bail he was then returned to the city jail.

There is a dispute in the testimony as to whether appellant was questioned on Tuesday, appellant stating that he was and Sgt. Morales testifying that he was not.

No claim was made by appellant that he was questioned on Wednesday, and there is a conflict in the testimony as to whether he was carried that day or the following day to Borger, where his truck was searched by

Page 656

the officers. Suffice it to say that he was carried on one of the two days to Borger, where the officers, with his consent, did search his truck.

On Thursday, July 12, appellant was again taken by Sgt. Morales to the Department of Public Safety at Midland, where another polygraph examination was given him.

Following this examination, appellant gave a second written statement to Sgt. Morales in which he admitted...

To continue reading

Request your trial
50 practice notes
  • United States v. Cook, No. 26458.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 28, 1972
    ...the verdict are in favor of the government. Diaz-Rosendo v. United States, 357 F.2d 124, 129 (9th Cir. 1966), cert. denied 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 83 We note that the trial judge patiently instructed the jury as to the elements of the crime of perjury which had to be proven b......
  • State v. Gibson, No. 14425
    • United States
    • Idaho Supreme Court
    • December 15, 1983
    ...Hernandez v. United States, 370 F.2d 171 (9th Cir.1966); Buatte v. United States, 350 F.2d 389 (9th Cir.1965) cert. denied, 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 83 (1966); Ladd v. State, 568 P.2d 960 (Alaska 1977) cert. denied, 435 U.S. 928, 98 S.Ct. 1498, 55 L.Ed.2d 524 (1978); People v.......
  • United States v. King, Crim. No. 11627.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • November 23, 1971
    ...317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942); Diaz-Rosendo v. United States, 357 F.2d 124 (9th Cir. 1966), cert. denied 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 83 (1966). Sentencing could present a problem in a situation such as this since the penalties imposed under the old law were more su......
  • U.S. v. Diggs, Nos. 73-1667
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 3, 1975
    ...291 F.2d 56, 59 (9th Cir. 1961); overruled on other grounds, Diaz-Rosendo v. United States, 357 F.2d 124, Cert. denied, 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 8 Although the majority relied on Bailey, "(p)erhaps definitively, (to) terminate further present treatment" of the search and seizu......
  • Request a trial to view additional results
50 cases
  • United States v. Cook, No. 26458.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 28, 1972
    ...the verdict are in favor of the government. Diaz-Rosendo v. United States, 357 F.2d 124, 129 (9th Cir. 1966), cert. denied 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 83 We note that the trial judge patiently instructed the jury as to the elements of the crime of perjury which had to be proven b......
  • State v. Gibson, No. 14425
    • United States
    • Idaho Supreme Court
    • December 15, 1983
    ...Hernandez v. United States, 370 F.2d 171 (9th Cir.1966); Buatte v. United States, 350 F.2d 389 (9th Cir.1965) cert. denied, 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 83 (1966); Ladd v. State, 568 P.2d 960 (Alaska 1977) cert. denied, 435 U.S. 928, 98 S.Ct. 1498, 55 L.Ed.2d 524 (1978); People v.......
  • United States v. King, Crim. No. 11627.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • November 23, 1971
    ...317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942); Diaz-Rosendo v. United States, 357 F.2d 124 (9th Cir. 1966), cert. denied 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 83 (1966). Sentencing could present a problem in a situation such as this since the penalties imposed under the old law were more su......
  • U.S. v. Diggs, Nos. 73-1667
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 3, 1975
    ...291 F.2d 56, 59 (9th Cir. 1961); overruled on other grounds, Diaz-Rosendo v. United States, 357 F.2d 124, Cert. denied, 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 8 Although the majority relied on Bailey, "(p)erhaps definitively, (to) terminate further present treatment" of the search and seizu......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT