Collins v. State, No. 33514

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Citation: 171 Tex.Crim. 585,352 S.W.2d 841
• Docket Number: No. 33514
• Parties: Clarence COLLINS, Appellant, v. STATE of Texas, Appellee.
• Decision Date: 02 October 1961

Page 841

352 S.W.2d 841 171 Tex.Crim. 585 Clarence COLLINS, Appellant,
v.
STATE of Texas, Appellee. No. 33514. Court of Criminal Appeals of Texas. Oct. 2, 1961.
Rehearing Denied Jan. 10, 1962.

[171 TEXCRIM 585]

Page 842

William F. Walsh, of Foreman & Walsh, Houston, for appellant.

Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., and Charles C. Castles, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The offense is murder; the punishment, 99 years.

This is a companion case to Morgan v. State, Tex.Cr.App., 346 S.W.2d 116, wherein appellant's coindictee, Maggie Morgan, was convicted for the murder of Mrs. Wilma B. Selby, deceased, and assessed punishment at death.

[171 TEXCRIM 586] The evidence adduced by the state in the two cases, with exception of appellant's written confession, is substantially the same, and, as fully set forth and found sufficient in the opinion of this court affirming the death penalty conviction, shows that on the night of November 16, 1959, the deceased was killed by two shots fired from a .22 caliber pistol after she entered her home in the city of Houston. The state's proof reflects that it was appellant who fired the fatal shots in executing his part of a conspiracy entered into between the deceased's

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husband Joseph Selby, Patra Mae Bounds, Maggie Morgan, and appellant, whereby Selby agreed to pay and did pay a sum of money for the killing of his wife.

Appellant's written confession, made to the officers following his arrest, was introduced in evidence by the state over appellant's objection, in which confession he described in detail his participation in the conspiracy to kill the deceased and the firing of the two shots which killed her on the night in question.

Appellant did not testify but offered evidence in support of his contention that the confession was illegally obtained from him and in support of his defense of alibi.

The court, in his charge, submitted to the jury the issue as to the voluntary nature of the confession and appellant's defense of alibi.

Appellant's contention on appeal is that the conviction must be reversed because the confession used by the state was inadmissible as a matter of law. Appellant insists that under the facts presented the confession is shown to have been obtained in violation of Articles 726, 727 and 727a, Vernon's Ann.C.C.P., and the due process of law clauses of Art. 1, sec. 19, of Vernon's Ann.Texas Constitution, Vernon's Ann.St., and the 14th Amendment to the Constitution of the United States.

A summary of the facts and circumstances surrounding the making of the confession reflects the following:

On December 12, 1959, at approximately 9:30 p. m., the appellant, a colored man 23 years of age, was first taken into custody by certain officers at the home of Maggie Morgan in the city of Houston. No warrant had been issued for his arrest. Appellant was then taken to the police station and, after being [171 TEXCRIM 587] questioned for a very short time, placed in jail. There is no evidence that appellant was questioned in any manner the next day. The following day, December 14th, he was questioned for twenty or thirty minutes and made a statement in the form of an affidavit. After being given a polygraph examination appellant was released around 6 p. m., without any charges being filed against him.

On January 19, 1960, appellant was again taken into custody at his home in the city of Houston around 8 p. m., without a warrant having been issued for his arrest. From his home he was taken to the Ranger headquarters in the city where he remained until approximately midnight. There was no actual questioning of appellant at such time.

Around midnight appellant was taken by the officers from Ranger headquarters to Humble, Texas, some 10 or 12 miles away, where he was placed in jail after being charged by complaint before a justice of the peace under the name of Joe Smith for the offense of vagrancy.

The following afternoon (January 20) three colored officers went to the Humble jail and returned appellant to the Ranger headquarters in Houston, arriving at approximately 5 p. m. Appellant had been given coffee and doughnuts for breakfast and upon being returned to Ranger headquarters declined the offer of food, stating that he had just eaten two hamburgers.

After being returned to Ranger headquarters appellant was questioned by several officers, starting at 6:30 p. m. Around 9 p. m., Officer Baker (the person to whom the statement introduced in evidence was made) talked to appellant for 30 to 45 minutes. Appellant then made a statement which was reduced to writing over a period of two hours, which was completed around midnight. At 1:25 a. m., appellant was given a polygraph examination lasting six to eight minutes. Another examination was given at 2:05 a. m., lasting the same length of time. At approximately 3:15 a. m., Officer Baker again talked to appellant, at which time appellant confessed to the crime. The statement was reduced to writing, beginning at 4:30 a. m. and completed at 7 a.

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m., at which time appellant signed the same. This statement was introduced in evidence, over appellant's objection, as state's exhibit #22.

[171 TEXCRIM 588] After appellant confessed to the crime, charges were filed against him and a warrant issued for his arrest at 4:30 a. m. At 9 a. m., appellant was taken before a magistrate.

The evidence shows that no promises were made by the officers to appellant during their questioning of him and there was no physical violence inflicted upon him or threats of same during such questioning.

Medical experts called by appellant testified that he was of low intelligence but not so low as to be classed as mentally defective. They further described him as being weak in character, like that found in children between the ages of three to six, and having an abnormally low tolerance for stress.

The fact that appellant was arrested without a warrant and was not taken forthwith before a magistrate does not, standing alone, vitiate the confession. Dimery v. State, 156 Tex.Cr.R. 197, 240 S.W.2d 293; Golemon v. State, 157 Tex.Cr.R. 534, 247 S.W.2d 119, certiorari denied, 344 U.S. 847, 73 S.Ct. 60, 97 L.Ed. 659; Sampson v. State, 160 Tex.Cr.R. 302, 268 S.W.2d 661; Gallegos v. State of Nebraska, 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86; Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; Stein v. People of State of New York, 346 U.S. 156, 73 S.Ct. 1077, ...