Johnson v. State
| Decision Date | 23 January 1974 |
| Docket Number | No. 47442,47442 |
| Citation | 503 S.W.2d 788 |
| Parties | Leroy JOHNSON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Alvan N. Wells, Jr., Killeen, C. Gordon Metcalf, Temple (On appeal only), for appellant.
Joe Carroll, Dist. Atty., and Troy C. Hurley, Asst. Dist. Atty., Belton, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.
REYNOLDS, Commissioner.
Appellant Leroy Johnson was convicted of, and assessed punishment of twenty years confinement for, the offense of murder.
Appellant was charged with killing Mary Torres by shooting her with a gun on August 5, 1972. Appellant admitted shooting the deceased with a pistol, but contended the shooting was excused or justified. The jurt rejected the defense of accident and self-defense. A statement of the facts is required.
Responding within two minutes to a radio broadcast of a shooting, Sergeant William C. Miller of the Temple Police Department arrived at the address given. He observed appellant, whose arms were folded so that his hands were not visible, leaning on the trunk of a vehicle. As Sergeant Miller approached appellant, another police officer, Sergeant Payne, arrived. Sergeant Miller advised appellant that he was a police officer, asked him not to move his hands in any way, and placed his hand on his gun. Appellant said, 'you won't need that, the gun is in the car.' Subsequently, Detective Sergeant Willroy Pitrucha, in the presence of Sergeants Miller and Payne, removed appellant's pistol from under the front seat of the automobile on which appellant was leaning.
Sergeant Miller 'patted him (appellant) down' for a weapon and found none, at the same time asking if anyone had been shot and stating he had a report of a shooting. Appellant replied, 'The problem is in the house.' Requesting Sergeant Payne to watch appellant, Sergeant Miller started toward the house, and appellant and Sergeant Payne followed. As they neared the house, appellant said, 'the door is locked and I have the key,' and then produced the key. Sergeant Miller took the key, opened the padlocked door, and at this moment appellant said, Mary Torres, the deceased, was found in the front room, her feet extending some eight inches into the dining room adjoining. Not more than two minutes had elapsed from the time of Sergeant Miller's arrival until the body of the deceased was found.
The deceased died from a bullet would inflicted in the back of her head. When the pistol was recovered from the automobile, it was determined to be a .32-caliber gun and was fully loaded with six live shells. It was a double action revolver and is fired by either pulling the trigger or pulling the hammer back and then pulling the trigger. Found in the house was a box, designed to hold fifty shells, containing 39 live .32-caliber shells. Sergeant Pitrucha found two spent .32-caliber cartridges, one in a bedroom and the other in the front room, and a spent slug or bullet in the front room. A bullet was recovered from the head of the deceased.
Sergeant Payne testified that he placed appellant under arrest, warned him of his constitutional rights, and placed him in custody of Officer Townsend. Officer Townsend talked with appellant at the scene some fifteen minutes after appellant was arrested by Sergeant Payne. Officer Townsend's testimony was that he, in the presence of Officer Conway, orally advised appellant of all his constitutional rights. Mike Hughes, later employed as a dispatcher by the police department, testified he was present and heard Officer Townsend warn appellant of his rights. According to Officer Townsend, appellant said he understood his rights and made a statement.
Ten minutes later, Officer Townsend reduced the oral warning previously given to writing, again advised appellant of his rights as written, and asked appellant to read his rights from the writing. It appeared to Officer Townsend that appellant read the written rights. The warning is shown by the record to comply fully with the requirements of Article 38.22, Vernon's Ann.C.C.P.
As appellant made his statement, Officer Townsend committed the statement to writing in appellant's own words. The warning and the statement are on five pages, each of which is headed 'State of Texas County of Bell.'
Appellant was then taken to the Temple police station where his constitutional rights were repeated to him. Appellant read his rights as written at the beginning of the statement, read the statement, and then signed each page. Each page was signed and sworn to in the presence of a notary public in and for Bell County, Texas, who affixed his signature and seal to each page. Officer Townsend testified that he did not tell appellant the statement would help him.
Appellant admitted that at the police station he was advised of his rights, that he read them in the statement, and that he signed each page; however, he denied he had received any other warning. He stated he signed the statement because Officer Townsend said it would help him, although he admitted the officer also told him the statement could hurt him.
Excerpted from the written statement are appellant's comments as follows:
Appellant's in-court version of the event is portrayed by his testimony as follows:
Appellant predicates his appeal on four grounds of error. For clarity, the grounds will be considered in reverse order.
The fourth and last ground is directed to the admission in evidence of appellant's oral and written statements in violation of Art. 38.22, V.A.C.C.P.
It was error, appellant asserts, that the trial court initially made no finding, either oral or written, quoting the statements found to have been, and admitted as, voluntarily given, and the court entered an order of voluntariness only after appellant had objected to the court's charge. The assertion does not reflect error.
At the offer of and objection to both the oral and written statements, the trial court promptly and properly retired the jury and heard evidence bearing on the voluntariness and admissibility of the statements. At the conclusion of the hearing respecting the oral statements made by appellant at the scene of the shooting, the court found and orally announced that beyond a reasonable doubt the statements were voluntarily made, were a part of the res gestae and were admissible as a matter of law. A written order so stating was entered that day.
Later, as the last proceeding of the day, the court heard evidence on the voluntariness of the...
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