Clewis v. State
| Decision Date | 04 October 1965 |
| Docket Number | No. 37483,37483 |
| Citation | 415 S.W.2d 654,87 S.Ct. 104 |
| Parties | Marvin CLEWIS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
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 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 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 killing his wife by srangling her with a belt.
On Friday, July 13, appellant was delivered by the city officers to the sheriff and placed in the Midland County jail.
There is no claim that appellant was questioned by anyone from Friday until Tuesday, July 17, around 10:30 a.m., when he was questioned by deputy Howell and district attorney Joe Mims and, after being duly warned, made and signed the written confession introduced in evidence.
The proof further shows that before appellant made and signed the third statement, which was introduced in evidence, he had consulted with an attorney.
In his testimony, appellant stated that he was threatened and physically abused by Sgt. Morales, Ranger John Wood, and polygraph operator Reed. This was denied by them. Appellant also claimed that he was without food while in custody of the city police. Appellant's testimony was, in substance, that he signed the first two confessions because he was scared, sick, and hungry and that the reason he signed the third confession (state's exhibit #13) was because he was scared and afraid that he would receive the same treatment which he had received while in custody of the city officers: that he had already signed two statements and 'didn't figure it made any difference.'
Testimony was presented by the state that appellant was offered food which, on occasions, he would refuse. On other occasions he was given milk and soup, which was for a stomach condition he claimed he had.
None of the officers who appellant claimed had threatened and physically abused him when he made the first two confessions were present when he made the third confession to deputy sheriff Howell.
In a supplemental transcript, certain findings by the trial court which were reduced to writing and filed in the trial court have been forwarded to this court, in which the trial judge certifies that at the conclusion of the hearing, in the jury's absence, he found the confession offered in evidence as being voluntary and admissible.
We have concluded to accept such belated entry and filing of the trial court's findings in passing upon the admissibility of the written confession, under the decision in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908.
While the record reflects that an issue was raised as to the voluntary nature of the confession, which issue was submitted to the jury, the evidence is undisputed that before appellant made the confession introduced in evidence, he had been taken before a magistrate, at which time charges were preferred against him and bail set. Further, appellant, while in...
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