Lavan v. State

• Decision Date: 07 November 1962
• Docket Number: No. 34882,34882
• Citation: 363 S.W.2d 139
• Parties: John LAVAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 139

363 S.W.2d 139

John LAVAN, Appellant, v. The STATE of Texas, Appellee.

No. 34882.

Court of Criminal Appeals of Texas.

Nov. 7, 1962.

Rehearing Denied Jan. 9, 1963.

C. C. Divine, Houston, for appellant.

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

DICE, Commissioner.

The offense is murder; the punishment, death.

The deceased, Mrs. Cecelia Atkins, a 54-year-old widow, operated a small grocery store in the city of Houston and lived alone in the residence portion of the store building. John E. Heffernan, an elderly gentleman who had retired from city employment, was a close personal friend of the deceased and assisted her in the operation of the store. It was his daily custom to go to the store each morning around 6:30 o'clock and help the deceased open the business and to then assist her in closing the store at night around 7:30 o'clock. It was his custom also, after closing the store each evening, to remain and visit with the deceased for some time and watch television.

On the Saturday night of March 11, 1961, Heffernan left the premises around 9:30 o'clock, at which time he turned on the outside lights and heard the deceased lock the door behind him. The following morning when he returned around 7:15 o'clock, he observed the outside lights still burning and the door unlocked. Upon entering the house he found the deceased, in a nightgown and covered with a spread, lying dead on the floor of one of the bedrooms.

The investigation which ensued revealed many items missing from the store, including a box of King Edward cigars, a box of Lord Clinton cigars, a bottle of homemade wine, a bottle of port wine, a flashlight, a box of .22 caliber cartridges, and the money which the deceased kept in small purses inside a large purse under her mattress. Also missing were certain items belonging to Mr. Heffernan, including some shirts and trousers, a denim jacket and a ten-year and thirty-year service pin from the city of Houston. The gas refrigerator was not operating and the smell of gas was in the house. A further investigation revealed that underneath the house someone had cut the gas line and had bored three sets of holes through the floor.

An autopsy performed upon the deceased's body revealed that she had been shot four times with a .22 caliber weapon, three of the shots being the cause of her death. Dr. Joseph Jachimczyk, the pathologist who performed the autopsy, expressed the opinion that the time of death of the deceased was between the hours of one and three o'clock on the morning of March 12, 1961.

On March 20, 1961, the appellant was arrested for a traffic violation, at which time it was discovered that his car bore license plates registered for another automobile and that he was in possession of an operator's license belonging to some other person. A search of his automobile revealed numerous cartons and mixed packages of cigarettes and candies, some cans of sardines, a King Edward cigar box, a Lord Clinton cigar box, a box of .22 shells, a flashlight and a blackjack, a bottle of homemade wine, a bottle of port wine, a .22 caliber Colt automatic pistol, a brace and bit, some sash cord, a pair of pipe cutters, and several articles of clothing. Five small purses were found hidden in the air vents under the hood of the automobile. Inside one of the purses was a poll tax receipt and some other receipts issued to Mrs. Cecelia Atkins.

It was shown that the price marks on the cans of sardines were identical with the price marks on identical cans of sardines in the store of the deceased; that the .22 shells, the flashlight, the two bottles of wine, and some of the clothing came from the store of the deceased; that the bit recovered was the same size used in boring the holes in the floor of the residence of the deceased; that the pipe cutter was identical to the pipe cutter that cut the gas pipe under the deceased's house; and that the sash cord was identical to a piece found in the room where the deceased was lying. Two of the three bullets from the deceased's body were shown by ballistics tests to have been fired from the .22 Colt automatic pistol found in appellant's automobile, the third bullet being too mutilated to make a positive identification.

On March 21, 1961, appellant, after being duly warned, made and signed a written confession to Officer J. D. Belcher of the Houston police department. In the statement, which was introduced in evidence by the state, appellant stated that he had watched the store of the deceased on Friday and Saturday nights; that he started the job on Friday night by crawling under the house and partially cutting the gas pipe and partially drilling the holes through the floor so that he could attach a rubber hose to the open gas pipe and put it through the floor to cause the deceased to lapse into unconsciousness. He related that after he ascertained he could not complete the job he left and returned the next night; that after the deceased was asleep he finished cutting the pipe and placed the rubber hose on the pipe and through the floor; that one of the deceased's bedroom windows was open and the gas was not taking effect as he had planned, so he unlocked a screen with a piece of wire and entered the house; that after entering he shook the bed, the deceased awakened, and he shot her 'three or four times.' He further...