Golemon v. State

• Decision Date: 16 January 1952
• Docket Number: No. 25504,25504
• Citation: 247 S.W.2d 119,157 Tex.Crim. 534
• Parties: GOLEMON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 119

247 S.W.2d 119

157 Tex.Crim. 534

GOLEMON v. STATE.

No. 25504.

Court of Criminal Appeals of Texas.

Jan. 16, 1952.

Rehearing Denied Feb. 27, 1952.

Second Motion for Rehearing Denied April 2, 1952.

Pliny V. Meyers, Brann Fuller, Houston, for appellant.

George P. Blackburn, State's Atty., of Austin, for the State.

DAVIDSON, Commissioner.

In a former appeal of the case growing out of this transaction, the judgment was reversed and the prosecution ordered dismissed. 230 S.W.2d 814, 816.

A new indictment was presented in the District Court of Hardin County, Texas, on the 28th day of June, 1950, charging appellant with the malicious murder of Cloyce Eloise Twitchell. Upon the court's motion the venue of the case was transferred to the District Court of Chambers County, Texas. Subsequently, the venue was upon the court's own motion transferred to the District Court of Liberty County, Texas, where trial was had resulting in appellant's conviction, with the death penalty assessed.

A statement of the facts touching the finding of the body of deceased is set forth in the companion case of Leviness v. State, Tex.Cr.App., 247 S.W.2d 115, and will not be here repeated.

The chief contention upon this appeal relates to the receipt in evidence of appellant's confession over his objection that it was not freely and voluntarily made but was the result of fear, coercion, and physical abuse administered by the arresting officers and those having him in custody, and the failure of the arresting officers to promptly carry appellant before a magistrate--all of which appellant contends rendered the confession inadmissible in evidence under the statute law of this state and the due process clauses of our State and Federal Constitutions.

The use in evidence against one charged with crime of a coerced or forced confession constitutes a denial of due process. The later decisions of the Supreme Court of the United States attesting the rule are set forth in Prince v. State, Tex.Cr.App., 231 S.W.2d 419, and will not be here repeated. In determining if a denial of due process has occurred in the particular mentioned, the Supreme Court of the United States arrives at a conclusion by an independent examination of and from the undisputed facts.

This court has not hesitated to reverse cases where the undisputed facts show a forced or coerced confession. Abston v. State, Tex.Cr.App., 102 S.W.2d 428; Blackshear v. State, 130 Tex.Cr.R. 557, 95 S.W.2d 960; Sigler v. State, 139 Tex.Cr.R. 267, 139 S.W.2d 277.

The principal difference in the approach to a determination of the question by each of the courts lies in the fact that this court does not agree that force, coercion, and involuntariness are shown by some of the fact situations which have prompted the Supreme Court of the United States to conclude to the contrary. White v. Texas, 310 U.S. 530, 60 S.Ct. 1032, 84 L.Ed. 1342; Lomax v. Texas, 313 U.S. 544, 61 S.Ct. 956, 85 L.Ed. 1511; Ward v. Texas, 316 U.S. 547, 62 S.Ct. 1139, 86 L.Ed. 1663.

It is apparent, therefore, that in determining the admissibility of a confession claimed to be inadmissible because it was forced and involuntary, this court must first determine what we think the Supreme Court of the United States would conclude from an independent examination of the undisputed facts. The only yardstick by which we are to be governed in reaching such conclusion is, of necessity, an examination of the several fact situations as expressed in the decisions of that court and upon which the conclusion was predicated that the confession was or was not inadmissible in evidence. This court has not hesitated in giving due deference and controlling effect to the holdings of the Supreme Court of the United States where we have deemed those holdings to be applicable. Prince v. State, supra.

Such are the conditions under which we are to here reach a conclusion.

The undisputed facts touching appellant's arrest and the making of the confession appear to be:

The time fixed for the murder was September 28, 1948. The decomposed body of deceased, a white female, was, on October 4, 1948, found in a 'pretty dense thicket' in the area known as 'the Big Thicket.' About one o'clock in the afternoon of June 28, 1949, appellant was arrested at Hempstead, Texas, without warrant of arrest, by Ranger Klevenhagen and Sheriff Kern of Houston, Harris County. The officers immediately placed appellant in an automobile and started with him to Kountze, the county seat of Hardin County, the county in which the body of deceased had been found. The officers began questioning appellant and ascertained from him information that one 'Frog,' or Leviness, was implicated with him in the alleged murder. With this information they decided to drive or go by the state penitentiary at Huntsville to investigate the penitentiary records as to Leviness and appellant. Upon arriving at Huntsville appellant was placed in the penitentiary, where he remained for a few hours while the officers checked the records, at the completion of which appellant was taken to Kountze and there placed in jail about dark of the day of his arrest.

The officers, after placing appellant in jail and in the custody of the sheriff of Hardin County, set out for Orange, Texas, where they arrested Leviness. The officers, with Leviness, returned to Kountze about midnight of the night of June 28, 1949. Appellant and Leviness were thereupon brought into what is referred to as 'Sheriff Lindsey's parlor' at the jail for questioning.

Appellant and Leviness, in the presence of each other, were questioned by the officers until 'about daylight the next morning,' when appellant signed a statement. During the questioning, six peace officers were present, including two Texas Rangers and three sheriffs. This statement, which will be referred to as the first statement, was not offered in evidence.

Following the signing of the first statement, appellant and Leviness were carried to the scene of the homicide to search for the gun which appellant appears to have stated in the course of his questioning by the officers had been used in the homicide. Appellant showed the officers the place where he said he had hidden the gun, but it could not at that time be found. Appellant was then carried to Beaumont, where he was alleged to have purchased a gun at a pawn shop. The pawn shop keeper could not identify appellant as having purchased a gun from him but did produce and identify a purchase record showing that he had sold a gun to a person using a name other than that of the appellant, appellant having advised the officers before or at the time of the making of the statement that, using a fictitious name, he had purchased a gun at a place in Beaumont. Proof by a comparison of handwriting was introduced which tended to show that appellant had in fact signed the purchase record and received a gun or pistol.

After a futile search for the pistol, on the morning of June 29, the officers sent to Houston for a mine detector. On July 1, by and with the aid of the mine detector, the gun was found which corresponded to that which had been purchased at the pawn shop and described by appellant in his answers to the questioning of the officers.

On July 5, about a week after the making of the first statement, Hightower, the then prosecuting attorney, went to the jail for the purpose, he says, of interviewing appellant and Leviness, his alleged co-actor, and talk over with them the statements or confessions they had theretofore made in view of having them verify said statements. In furtherance of this purpose, Hightower had both appellant and Leviness brought from the jail into the sheriff's and there in the presence of the prosecuting attorneys and peace officers--at least one of whom was present when the first statement was made--appellant and Leviness were questioned, with the first statement before them, in each other's presence. In several instances, the answers given were verified or challenged by the other.

At the expiration of this interview, a second statement or confession was made by appellant, which was the statement introduced in evidence in this case. It is well to note in this connection that Hightower testified that appellant's second statement contained material changes from those contained in the first statement. Just what those changes were the record does not reflect. According to Hightower's testimony, as well as that of other witnesses, the second statement or confession was freely and voluntarily made and in compliance with the provisions of Art. 727, C.C.P.

It would serve no useful purpose to here set out the confession as introduced in evidence. It is sufficient to say that it showed appellant guilty of the offense charged, without which the sufficiency of the state's case to support the conviction would be doubtful.

Appellant, testifying as a witness in his own behalf, challenged the voluntariness of the confession and testified that it was made only as a result of threats, fear, coercion, and physical violence administered by the arresting officers and those who had him in custody.

All the officers whom appellant implicated as having administered the physical violence as well as threats and coercion testified denying appellant's testimony and asserting that the confessions were freely and voluntarily made.

In accordance with established precedent in this state, the trial court submitted to the jury the disputed issues of fact touching the voluntariness of the confession and instructed the jury to the effect that if they entertained a reasonable doubt as to whether the confession was freely and voluntarily made to acquit the appellant.

The verdict of the jury constitutes a finding that the confession was voluntarily made in accordance with the statute law of this state. Art. 727, C.C.P.

Appellant's accusation of physical violence and threats by the officers, being disputed, is therefore not to...