Forder v. State, 42879

• Citation: 456 S.W.2d 378
• Decision Date: 02 June 1970
• Docket Number: No. 42879,42879
• Parties: Timothy Michael FORDER, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 378

456 S.W.2d 378

Timothy Michael FORDER, Appellant, v. The STATE of Texas, Appellee.

No. 42879.

Court of Criminal Appeals of Texas.

June 2, 1970.

On Rehearing July 22, 1970.

Turner & Eaton, by John Eaton, San Angelo, for appellant.

O. L. Parish, Jr., County Atty., Ballinger, Royal Hart, Dist. Atty., San Angelo, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

BELCHER, Judge.

The conviction is for murder; the punishment, ninety-nine years.

At the time of the alleged commission of the offense the appellant was sixteen years of age. The Juvenile Court of Runnels County, the county in which the alleged offense occurred, waived jurisdiction and certified the appellant to the District Court under the authority of Article 2338--1(6), Vernon's Ann.Tex.Civ.St., to be tried as an adult. The District Court of Runnels County granted a change of venue to Tom Green County where the trial was had from which this appeal was taken.

The appellant contends that the basic requirements of due process and fundamental fairness were not accorded the appellant in that his mother was not notified of the charges against him or of his right to the presence and assistance of counsel '(a) before exclusive juvenile jurisdiction over him was waived and (b) before he had made certain incriminating statements against himself.'

The record reflects that the appellant was declared a delinquent child by the Juvenile Court in El Paso, Texas at the age of ten and was thereafter a resident of West Texas Boys Ranch in Tom Green County, Texas until he was released in 1965. In 1967 he was declared a delinquent child by the Juvenile Court of Indianapolis, Indiana where he was placed on probation. The father of the appellant was killed in an automobile accident in 1964, and the appellant's mother resided in Indianapolis, Indiana.

The record reflects that when the appellant was permitted to place a telephone call to his mother, she refused to accept the costs for the call, and the appellant was unable to talk with her.

The court summary prepared for the Juvenile Court of Runnels County, Texas and made a part of the record at the hearing on the question of waiver of jurisdiction to the District Court reveals the following attempt to notify the appellant's mother of his situation:

'In an effort to comply with juvenile procedures, several methods have been applied to assure TIM'S mother received notification of his situation and circumstances. The Hon. County Attorney, MR. O. L. PARISH, JR., of Runnels County, Texas, mailed a registered, special delivery, air mail letter on 11--21--67 to her at 2830 Robison, Indianapolis, Indiana, which was returned on/about 11--28--67 marked 'Moved--left no forwarding address.' MR. HENRY WARFIELD, Probation Officer, Juvenile Center, Indianapolis, Indiana, advised me by telephone that he had personally gone out to her current residence, 1326 North New Jersey Street, Apt. $2, Indianapolis, Indiana, and advised MRS. FORDER of TIM'S situation. I sent her a wire through Western Union on November 22, 1967, advising her of TIM'S situation; of the planned juvenile hearing for December 5, 1967; of the letter MR. PARISH had mailed to her old address; that she should contact the post office reference the delivery of the letter; and requested that she notify me by collect wire or telephone call of her intent to come to the hearing. Having heard nothing by December 1, 1967, I requested confirmation of the delivery of my wire. Confirmation was received from Indianapolis Western Union on December 2, 1967, that my wire was delivered to MRS. PATRICIA ANN FORDER at 9:00 A.M. EST on November 23, 1967.'

The hearing on the petition filed on October 31, 1967, in Juvenile Court, where counsel was appointed, to transfer jurisdiction of the appellant to the District Court was held on December 13, 1967. The appellant's mother, therefore, was notified of the situation prior to the hearing in Juvenile Court.

The record further reflects that the appellant, when he was first arrested, told the arresting officer, William A. Sneed of the Texas Department of Public Safety that he was seventeen years old, and it was not until after the appellant confessed to Sheriff Atkins, who then called the appellant's probation officer in Indianapolis, Indiana, that Atkins was informed that the appellant was only sixteen years of age.

Under the above facts and those set out under the appellant's grounds of error four and eight, the alleged failure to notify the appellant's mother before the hearing in Juvenile Court and before the taking of the confession and the failure to take the appellant before the Juvenile Court immediately upon arrest do not constitute grounds for reversal of this case.

The appellant's fifth ground of error is overruled.

The fourth and eighth grounds are that:

'The trial court erred in admitting into evidence certain in-custody statements made by the defendant in the nature of an oral confession and in admitting into evidence a razor and some money found as a result of these inadmissible utterances'; and that the chain of custody of the razor was not established and the money was not properly identified.

The testimony reveals that Officer Sneed, Texas Highway Patrolman, found the appellant and Larry Ward about 4:20 a.m., October 15, at the scene of a traffic accident; that appellant told him he was seventeen years old and was riding in the rear seat of the car when it ran off the road; that he found a body beside the car with the throat cut. He further testified that the appellant and Ward were drunk and he placed them in jail about 6 a.m., Sunday morning, October 15. Sheriff Atkins talked with the appellant Sunday night, warned him of his rights, and when the appellant said he did not care to make a statement he left. Next, the appellant was taken before a magistrate about 12:25 p.m., Monday, October 16, where he was told of the drunk charge and the complaint filed against him for the murder of Johnny Adair, and then he was duly and properly warned of his rights, and again declined to make any statement.

Sheriff Atkins testified before the jury as follows:

'Q Now, when did you see Forder (appellant) again?

'A I saw him, the next time was on the 16th of October about 2:30 P.M., in the afternoon.

'Q And where were you when you saw him?

'A Well, I had reason to go back to the scene of the accident, and I went to the jail. I expected to meet two more officers over there and one or two men that wasn't officers. We were going out to make a through search again.

'Q At that time had you found the instrumentality that could have been used to make that laceration in the neck?

'A Up to that time?

'Q Yes, sir.?

'A No, sir.

'Q You said you were going out to the scene?

'A Yes, sir.

'Q Did you see Forder over at the jail?

'A I was standing on the jail steps waiting for the people to get together and go back to the scene of the accident; and Forder got out of the car ahead of Teatsworth, and Mr. Teatsworth heard the same thing, and there was a few words said between us. I think I asked him how he was getting along and if his finger felt all right, or something. I believe he said it was all right. Then he says, 'that little wall up there between the mugg room and your office isn't very sound proof.' I said, 'what do you mean, Tim?' He said, 'I heard Ward cop out on me, but I cut the son of a bitch's throat myself.'

'Q Who said that?

'A Tim Forder.

'Q The defendant seated here told you he cut the son of a bitch's throat himself?

'A He did so, and I says, 'Tim, you don't mean that?' He said, 'Yes, do. I can carry you to where the murder weapon is.'

'Q What did you do next?

'A Well, naturally, I took him to the scene of the accident.

'Q On the way out did you have any conversation with him?

'A Yes, sir. Mickey Brown drove and Tim and I talked, and I pulled the Miranda warning out again and said, 'Tim, I want to read this to you.' He said, 'Sheriff, you don't have to read it. I know it by heart.' I said, 'I want to read it anyway, because we are going to the scene of the crime,' and I did read it to to him again.

'Q Did you ask him whether or not he wanted a lawyer?

'A Yes, sir. It states there in the warning.

'Q What did he say?

'A No, he didn't want a lawyer appointed by the Court of Ballinger; he would get one later from Indianapolis; his mother would hire him.

'Q How did you know where to go?

'A I didn't know where to go.

'Q How did you find out?

'A Tim told me.

'Q And whereabouts along the highway to go, is that right?

'A Yes, sir.

'Q He told you how hard he threw it in that direction?

'A He didn't know exactly. He threw it pretty hard out in this pasture, which is sheep wire and a three barbed wire fence.

'Q After the defendant said he threw it over that fence did he point in the direction?

'A General direction.

'Q What happened then?

'A Well, the District Attorney and two officers from San Angelo, three deputies, three or four newsmen, everybody piled over this fence here, and the razor, the weapon was located, yellow handle razor, up here; and I was working down on this end when they yelled to me the weapon was found out here; and when I got down there Tim had it in his hand. I said, 'Tim, let me put--

'Q If you will, have a seat back there, Sheriff. Did Forder crawl over the fence?

'A Yes, sir.

'Q Did he say he didn't want to go out there, anything like that?

'A No. He wanted to go.

'Q Did he voluntarily go back out there with you, Sheriff?

'A Yes, sir, he wanted to go.

'Q Did he voluntarily tell you where to look?

'A The general place where to look.

'Q Did he go out and start looking in that area himself?

'A Well, we certainly wouldn't have looked the other side of the highway; we couldn't have found the razor if he hadn't show us where it was.

'Q If the defendant hadn't shown you where it was you couldn't have found it?

'A It still would have been there.

'Q At the time Forder showed you where the razor was...