Corbett v. State

• Decision Date: 01 May 1973
• Docket Number: No. 45901,45901
• Citation: 493 S.W.2d 940
• Parties: Raymond D. CORBETT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 940

493 S.W.2d 940

Raymond D. CORBETT, Appellant, v. The STATE of Texas, Appellee.

No. 45901.

Court of Criminal Appeals of Texas.

May 1, 1973.

Rehearing Denied May 23, 1973.

W. N. Shaw, Freeport, for appellant.

Ogden Bass, Dist. Atty., and Billy M. Bandy, Asst. Dist. Atty., Angleton, and Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

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

A review of the testimony is deemed necessary in order that appellant's contentions may be discussed with greater clarity.

Terry Simmons testified that on the evening of January 26, 1970, he learned that appellant was in LaMarque and wanted to see him. At approximately 7:00 P.M., the two met, and appellant asked Simmons to drive him to Freeport, a distance of about forty miles, for appellant to procure a pickup truck.

Simmons testified that, as the two drove in the direction of Freeport, appellant described to him the events of the day. Appellant and his employer, the deceased, T. E. Smith, had argued at appellant's home, where Smith occupied a rented bedroom. They had argued about some checks that appellant had written and Smith had called the bank about the checks and threatened to send appellant back to jail.

While Smith was talking on the telephone in his bedroom, appellant related to Simmons, he hit Smith on the back of the head with a piece of pipe. He told Simmons that he had hit the deceased numerous times until Smith's body stopped moving, that Smith had fallen on the bed, and that he had left the body hidden in the bedroom and secured the door. He then drove deceased's pickup truck away from the house, parked it, and got a ride to LaMarque.

Simmons testified further that appellant wanted Simmons to help him find someone to dispose of the body. Simmons replied that he would think about it.

When the two arrived at Freeport at about 9:00 P.M., appellant led him to Smith's pickup truck. Some twenty minutes later, appellant and Simmons drove the two vehicles back towards LaMarque. Simmons recalled that it was a very foggy night, and before they arrived back in LaMarque, appellant stopped the pickup truck on a bridge ahead of Simmons and threw something over the railing. Simmons could not see what appellant threw away.

When they arrived in LaMarque, they both drove to Simmons' house. Appellant called his wife and departed. Simmons told his wife what appellant had told him, and it was decided that Simmons would go to the police. He first called for Chief Feigle at 11:00 P.M., but he did not reach Feigle until 3:00 on the morning of the 27th. They talked for about an hour, and Feigle then telephoned Chief of Police Lassiter in Freeport and advised him that the body of T. E. Smith could be found at a particular address in Freeport. Feigle related that an informant had told him that appellant had killed the deceased at that location (appellant's home) and that appellant would be back later in the day to dispose of the body. Appellant was supposed to be driving the deceased's pickup truck, armed, and he had made the statement that he would not go back to jail.

Chief Lassiter drove by the address, and then went to the police department, where he was joined by another police officer. The two then drive back to appellant's house, where they observed a light burning. They drove around the area for a short time and returned to the police department and called a telephone number listed in the name of the deceased at the same address. There was no answer, and the two men then drove to the address and, finding the front door unlocked, walked in.

In the back bedroom, they found the body of deceased under a pile of bedclothes.

They immediately departed the premises, taking nothing and disturbing nothing, and Lassiter went immediately to the home of District Attorney Bass and conferred with him. Between 6:30 and 7:00 A.M., a police surveillance was established at appellant's house.

At approximately 10:00 A.M., Lassiter and Bass went to appellant's house, again entering through the front door. They observed the body and departed.

At 11:30 A.M., the officers in the surveillance observed appellant drive up to his house in the deceased's pickup truck. He was observed 'walking' a large wooden box into the side door of the house and immediately thereafter he carried in a wooden lid. The officers then heard hammering noises from within the house, and several times during the next half-hour, appellant appeared at the door and looked outside in all directions.

Sergeant Williams, of the Freeport Police Department, testified that shortly after 11:30 A.M. he observed appellant departing the premises in the deceased's pickup truck, and Williams and another officer followed appellant in an unmarked police vehicle until appellant parked the truck in a shopping center parking lot some distance away. The officers, both of whom were in civilian clothes, parked behind the truck and, with weapons drawn, identified themselves as police officers and arrested appellant as he existed the pickup. After he was handcuffed and placed in the police car, the two officers searched the truck and found a .38 revolver.

At some time in the early afternoon, appellant accompanied the District Attorney and several police officers back to his house, and the group entered the house, proceeded to the back bedroom and found the body of T. E. Smith sealed inside the wooden box.

At this time, the house was searched, photographs were taken, and several items were removed from the house including bloodstained tiles from the floor of the closet in the back bedroom. Other officers entered the house again later in the afternoon in the course of the investigation.

At no time did the District Attorney or any of the officers involved in the investigation ever obtain or attempt to obtain a warrant for appellant's arrest or a warrant for the search of appellant's house.

Several witnesses, including the wife of the deceased and employees of the First State Bank of Hitchcock, testified concerning checks by T. E. Smith made payable to appellant, which checks appellant had cashed and attempted to have cashed in the week preceding Smith's death. Mrs. Smith testified that on January 26, 1970, her husband, from whom she was separated, discovered in his bank statement two checks to appellant that Smith claimed he had not written.

Louis Boatright, Vice President of the Bank of the Mainland, in LaMarque, testified that at about 11:30 A.M. on January 26, 1970, he received a telephone call from T. E. Smith. In the call, Smith sounded excited, and he instructed that the bank should not 'honor any checks by Raymond Corbett' and, as Boatright attempted to clarify Smith's message, he heard Smith talking to another person to the effect that 'I am on the phone to Mr. Boatright at the bank at this present time.' Before Boatright could ask Smith to clarify his message, he heard Smith say, 'I am going to have your ass put in the pen,' at which time the call disconnected.

Records of the telephone company were introduced to show that a call had been made from T. E. Smith's telephone to the Bank in LaMarque at 11:32 A.M. on January 26, 1970.

Appellant's first contention is that any and all entries into his home by the authorities, on January 27, 1970, were warrantless searches, without his consent, not incident to his arrest and, therefore, unreasonable in violation of his rights under the Fourth Amendment of the United States Constitution and Article I, Section 9, of the Texas Constitution, Vernon's Ann.St. Appellant's motion to suppress evidence obtained in the searches was overruled after a pretrial hearing. Objection was made to introduction of such evidence during the course of the trial.

We look first to the initial entry by the Chief of Police and another officer at 6:00 A.M. Appellant contends this was a search without justification under the known exceptions to the constitutional requirement of a warrant for authorities to enter and search one's home. He relies upon the authority of numerous cases ¹ in which this Court has held that warrantless searches cannot be conducted even with sufficient probable cause absent some exigent circumstances such as the imminent possibility of destruction or removal of the evidence or contraband. The facts of this case focus our attention on the possible applicability of the 'emergency rule' discussed by this Court in Brown v. State, Tex.Cr.App., 475 S.W.2d 938. Appellant contends the present case is distinguishable from Brown v. State, supra, in that the officers entering the Brown home did so with the consent of the defendant and his uncle, and the original entry was, therefore, lawful because of that consent. While we agree that this distinction exists, the instant case is not at odds with Brown if the original entry and search for the body were justified under the emergency rule.

The emergency doctrine has developed as the courts have realized that the practical need for quick response by public officials sometimes outweighs even the imposing right of citizens to privacy and protection from unreasonable (warrantless) searches and seizures.

In Wayne v. United States, 115 U.S.App.D.C. 234, 318 F.2d 205 (1963), the police broke down a door to enter a room in which had been reported there was 'an unconscious person.' Justice Burger, in dealing with the conditions in which the police could properly enter a dwelling without a warrant, wrote in Wayne v. United States, supra:

'Breaking into a home by force is not illegal if it is reasonable in the circumstances . . .. But a warrant is not required to break down a door to enter a burning home to rescue occupants or extinguish a fire, to prevent a shooting or to bring emergency aid to an injured person. The need to protect or preserve life or avoid serious injury...