Leviness v. State

• Decision Date: 16 January 1952
• Docket Number: No. 25390,25390
• Citation: 157 Tex.Crim. 160,247 S.W.2d 115
• Parties: LEVINESS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 115

247 S.W.2d 115

157 Tex.Crim. 160

LEVINESS v. STATE.

No. 25390.

Court of Criminal Appeals of Texas.

Jan. 16, 1952.

Rehearing Denied Feb. 27, 1952.

Second Motion for Rehearing Denied April 2, 1952.

Houston Thompson, Silsbee, for appellant.

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

WOODLEY, Commissioner.

Appellant was convicted for the murder of Cloyce Eloise Twitchell and the jury assessed his punishment at confinement in the penitentiary for life.

The trial was had in Chambers County upon an indictment returned in Hardin County, the venue having been changed following the reversal of a death penalty conviction in Hardin County. See Leviness v. State, Tex.Cr.App., 230 S.W.2d 814.

The deceased left Beaumont on the afternoon of September 28, 1948, to return to her mother's home in Colmesneil, Texas, where her three year old child was being cared for. She had gone to Beaumont and had rented an apartment to be occupied by her and her family upon the approaching scheduled return of her sea-faring husband. She was traveling in her gray colored Kaiser automobile. A lady driver of a Kaiser car of similar description was seen to pick up two men on the outskirts of Beaumont. She drove away with them toward Colmesneil on a highway which passed through Hardin County, and was reported missing when she failed to reach home.

Several days later, on October 4, 1948, in a section of Hardin County composing a part of the area known as the 'Big Thicket', a badly decomposed body was found which proved to be the doby of Mrs. Twitchell, the deceased.

The Kaiser automobile was found in Harris County on the afternoon of the day Mrs. Twitchell left Beaumont.

Some months later officers investigating the crime, received information from the Darious Golemon implicating appellant in the murder. Appellant was apprehended in Orange, Texas, about 10 o'clock on the night of June 28, 1949, by a party of officers consisting of Sheriff Kern of Harris County, two State rangers and the assistant chief of police of Orange, and following his return to Hardin County and a visit to the scene of the crime, about 8:30 the following morning, signed a confession which was received in evidence over the objection of appellant, reading in part as follows: '* * * In the month of September, 1948, I believe this was along the last of September, Darious Golemon and myself came to Beaumont, Texas, from Odessa, Texas, where we both had been working. We just stayed in Beaumont one or two days. While we were in Beaumont, Golemon and myself bought a .38 pistol from a Pawn Shop on Crockett Street. This was a second hand gun and cost $25.00. I paid $10.00 on this gun and Golemon paid $15.00. We planned to leave Beaumont, Texas, and pull some kind of a job. Golemon and myself left Beaumont hitch-hiking. We were going North out the Eleventh Street road. A good ways out of town a woman traveling by herself and driving a Gray Kaiser Sedan stopped and picked us up. She ask us where we were going and Golemon told her we were going up on the other side of Kountze, Texas. This lady told us that she lived in Colmesneil, Texas. She told us that she had a yound baby and that this baby was at Colmesneil with her mother. She also told us that her husband was a seaman and was out on a trip. She said that she had been to Beaumont and rented a house as she was expecting her husband back shortly. I was riding in the middle and Golemon was on the right side. When we got on the other side of Kountze Golemon told this lady to stop and let us out at a side road. Golemon got out of the car and then I got out. Golemon then got back in the front seat and pulled the pistol on this lady and told her move over. He then told me to go around and drive the car. I started driving this car and when we got to the Honey Island road we turned to the left and went through Honey Island and came out on the Kountze-Saratoga road. We turned to the right on this road and went a short distance and then turned to the right again on a dirt road that went back into the woods. We went down this road about one hundred yards and stopped the car. We all three then got out of the car and started looking for a place to turn around. While we were out of the car the lady kept telling Golemon to put the gun up and she would feel a lot better. She told him again that she had a mother and baby at Colmesneil and for us to go ahead and take the car and let her go. About this time Golemon shot this lady twice, one shot hitting her in the stomach and the other one a little higher up, probably in the chest. The gun snapped and his lady started walking toward Golemon. When she got within reach he started hitting her over the head with the pistol. He hit her several times and she finally went down. He then told me to help him carry her over in the woods and get her off of the road. I picked up her head and shoulders and he picked up her feet and we carried her about twenty or thirty yeards off of this road into the woods. When we laid her down Golemon noticed that she was still breathing and had her eyes open. He hit her again with the pistol and the pistol broke into two pieces. We then took several limbs and covered this lady up. I walked back to the car and Golemon went out through the brush and in just a few minutes I met him back at the car. He told me he had washed his hands and that he had buried the pistol. I told him that I had shook the ladies purse and that there was just a few pennies and nickles in the purse. We then got into the ladies car and drove to Houston. * * * On the Humble road near Houston we passed Golemons sisters house. Shortly after we passed Golemon's sister's house we turned to the right. We went down this road about two miles and crossed over some railroad tracks. Right after we passed these railroad tracks wer turned to the left and drove a short ways and parked this Gray Kaiser car. There was a radio and some clothes in this car which we left. We walked through some woods back over the railroad tracks and while we were in the woods we both took a crap. I used a scarf that was in this ladies car to clean myself with. * * * We walked to Golemon's sister's house, which was about two miles and spent the night. My clothes and also Golemon's were bloody. We burned these clothes in Golemon's sister back yard. * * *'

Appellant insists that this appeal is ruled by Prince v. State, Tex.Cr.App., 321 S.W.2d 419, and the authorities cited therein, and that the undisputed facts here show a coerced, forced, and involuntary confession as a matter of law, notwithstanding the finding of the jury that it was voluntarily made. He contends that the court's ruling in admitting the written confession deprived him of his rights under the 14th Amendment to the Constitution of the United States, referred to as the due process clause.

Harris County Sheriff Kern testified before the court and again before the jury to the effect that at the time of apprehending appellant in Orange he believed that if he had taken the time to find a magistrate before detaining appellant, that appellant would have fled; that appellant went with the officers willingly; that as they started driving toward Kountze appellant admitted that he was involved in the murder; that appellant wanted to take the blame for the whole thing and said that he used a pine knot to beat the deceased's brains out, and told the officers that he would take them to the scene of the murder in the 'Big Thicket' and show them...