Lee v. State
| Decision Date | 06 May 1970 |
| Docket Number | No. 42787,42787 |
| Citation | 455 S.W.2d 316 |
| Parties | Lonnie LEE, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
W. E. Barron, Joe Falco, Jr., and James Bond, Navasota, Joe J. Newman, Houston (On Appeal Only), for appellant.
James F. Warren, Dist. Atty., and Robert D. Brewton, County Atty., Navasota, and Jim D. Vollers, State's Atty., Austin, for the State.
The offense is rape; the punishment, 60 years.
We first address ourselves to the motion to quash the jury panel on the grounds that black people had been excluded from the jury commission who selected the panel. The motion was filed on the day of the trial, and apparently neither the state nor the appellant was prepared. In such cases caution should be the watchword, and a delay should have been requested. But, in viewing this case as it comes to us, we must determine if the appellant has shown that discrimination permeated the selection of this panel by reason of exclusion. In Addison v. State, 160 Tex.Cr.R. 1, 271 S.W.2d 947, we said, 'If appellant has been here discriminated against by reason of his race, as he claims, such discrimination must rest in the act of the jury commissioners and not in the act of the judge in selecting the jury commissioners.'
Unlike Davis v. State, Tex.Cr.App., 374 S.W.2d 242, upon which appellant relies, in the case at bar, appellant called only three witnesses. As to the grand jury and its panel, the sheriff testified that he did not recall a black man having been selected on the jury commission. He believed that there were 'some' on the grand jury panel, but did not believe that there were 'any' on the grand jury. He stated that there were 'eight of the hundred' on the jury panel 'here today.'
The district clerk testified that he did not remember any black man serving on the jury commission; however, he recognized only the name of one black man on the grand jury panel, and five or six on the panel from which this jury was drawn.
The county judge testified only as to his opinion of the percentage of black people in the county.
This is not such a hearing as we had before us in Davis v. State, supra, and we cannot, on these facts, hold that discrimination has been shown.
Appellant's second ground of error is that the witness Paul Hill was not permitted to answer the question about appellant's 'character as to his wife and family.' There is an absence of any showing in the record as to what the witness would have answered if he had been permitted to do so. In Deams v. State, 159 Tex.Cr.R. 496, 265 S.W.2d 96, we pointed out the procedure to be employed in the event of an adverse ruling by the court. It should be noted that in Hamman v. State, 166 Tex.Cr.R. 349, 314 S.W.2d 301, upon which appellant relies, that the jury were retired, and the sought for answer was preserved in the record.
Appellant's third ground of error is that the court should have instructed a verdict of not guilty, because of the alleged inconclusiveness of the prosecutrix's identification of appellant as being her assailant. His principal contention is that prosecutrix testified that appellant was wearing an army fatigue jacket, whereas appellant and his witnesses testified that he had not served in the army and owned no such jacket. Clearly the jury were authorized to disbelieve appellant's claim and accept the prosecutrix's in-court identification of appellant. Her mistake, if it was, as to the make of the automobile which her assailant drove can have little probative value.
Ground number four relates to proof that appellant was subjected to a lie detector test prior to dictating his confession. There is evidence by both the state and appellant as to the taking of a lie detector test at Austin prior to his confessing. At the place in the testimony pointed out by appellant, the court sustained the objection and instructed the jury not to consider the same. Appellant was evidently satisfied with such ruling, because he asked for nothing further. In Nichols v. State, Tex.Cr.App., 378 S.W.2d 335, relied upon by appellant a motion for mistrial was made.
It should be further noted that in Webb v. State, 163 Tex.Cr.R. 391, 291 S.W.2d 331, we said '* * * the use of the lie detector test as a means of interrogation does not violate accused's constitutional rights or render the written confession thereafter made involuntary. * * *'
Appellant was arrested one month after the rape in question at approximately 9:00 p.m. and carried to jail. There he was warned by a justice of the peace. Thereafter, some questioning occurred, but no confession was taken. The next morning, after appellant had been left alone in a cell for four hours, his attorney came to jail, and conferred with him. Appellant was warned again, and then was taken to Austin. The trip was made with the knowledge of his counsel. In Austin, appellant was again warned of his rights, and then he dictated a written confession. On the way home from Austin, the officers discovered that the confession had been lost. Then, appellant was taken to the police station in Elgin where he made the written confession which was introduced in evidence. Prior to giving this last confession, Ranger Werner, who took the confession, warned appellant as follows:
The court was shown that the confession was essentially the same as the one taken in Austin (subsequently lost). The appellant testified:
The issue of voluntariness of the confession was submitted to the jury.
Since appellant had counseled with his attorney, had been properly warned in line with the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and Articles 15.17 and 38.22, Vernon's Ann.C.C.P., and testified on cross examination that he had been warned of his rights in Austin by Ranger Werner, of decline under the evidence here presented to hold the confession inadmissible as a matter of law.
Appellant's seventh ground of error relates to the arrest. Both the state and appellant overlooked the rule discussed by this court in Head v. State, 160 Tex.Cr.R. 42, 267 S.W.2d 419, wherein we said, '* * * it is the detention not the arrest which this Court and the Supreme Court of the United States hold under some circumstances vitiates the confession.' See also, Onion and White, Texas Code of Criminal Procedure--Its 1965--1967 Charges Affecting Corporation Courts and Police Practices, 10 So.Tex.L.J. 92 (1968). We have discussed the question of detention heretofore.
Prior to the search of appellant's automobile the appellant was warned by the justice of the peace, and he executed a written consent to search his automobile which was witnessed by the justice.
By supplemental brief, appellant questions the lineup identification of prosecutrix. There was no lineup as the term is commonly used. After his arrest, the prosecutrix came to the jail and identified appellant's voice. It is not shown that appellant was required to say anything or any particular words which he had said during the commission of the crime as was discussed by this Court in Beachem v. State, 144 Tex.Cr.R. 272, 162 S.W.2d 706. The prosecutrix merely heard him talk. In Gilbert v. State of California, 383 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, the Supreme Court said, 'a mere handwriting exemplar, in contrast to the content of what is written, like the Voice or body itself, is an identifying physical characteristic outside its protection,' (Fifth Amendment). 1 The witness thereafter positively identified appellant.
Finding no reversible error, the judgment is affirmed.
ON APPELLANT'S MOTION FOR REHEARING
The punishment assessed by the jury in this rape conviction was 28 years. The opinion on original submission was in error in reflecting the punishment assessed as 60 years.
On rehearing appellant again complains of the admission into evidence of his written extrajudicial confession particularly contending he was deprived of counsel during interrogation.
After appellant's arrest about 9 p.m. he was taken to jail. He was then taken before a magistrate and warned in accordance with Article 15.17, V.A.C.C.P. It was the undisputed testimony of Sheriff Johnson that appellant at such time waived his rights and expressly stated he did not want an attorney. During the...
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