Moore v. State, 41965
| Decision Date | 16 April 1969 |
| Docket Number | No. 41965,41965 |
| Citation | 440 S.W.2d 643 |
| Parties | Harold Orlando MOORE, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
John K. Coil, Dallas, on appeal, for appellant.
Henry Wade, Dist. Atty., John Stauffer, Douglas Mulder, Malcolm Dade, James P. Finstrom and Camille Elliott, Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.
The conviction is for murder; the punishment, fifty years.
The sufficiency of the evidence is not challenged.
The record reflects that appellant was seen in the apartment of John Hilldale in Dallas at approximately 2:30 a.m., on a Sunday, the 9th day of April, 1967. The body of Hilldale, the deceased, was found at about 10:00 a.m. the following day with a necktie pulled tightly around his neck. The cause of death was strangulation.
Appellant testified that on Saturday, April 8, he was hitchhiking, and the deceased gave him a ride. They drank beer with their lunch then went to the apartment of the deceased where they drank wine. During an argument appellant hit the deceased with his fist, took the keys to deceased's station wagon and left. At about 2:30 p.m., he arrived in Fort Worth and remained until the following Monday when he was arrested.
Three people from Fort Worth testified that appellant said he had killed a man whose name he did not know. Two witnesses for appellant testified that he was intoxicated and passed out in Fort Worth that Saturday afternoon.
Appellant, in his first ground of error, contends that reversible error was committed, because statements made after his arrest were introduced in violation of the holding in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. W. H. Wooldridge testified that he was a constable in Tarrant County; that he saw appellant get out of the station wagon (the deceased's) at a service station in Fort Worth. The following transpired:
'
An objection on the grounds that he had not been taken before a magistrate and advised of his rights and any statement made by him while under arrest should not be used against him was made and overruled. Wooldridge then testified:
'A. He said, 'Im glad you got me.'
'Q. Anything else?
'A. And then I told him to turn around and he turned around and he said, 'God, I'm glad you got me.'
'Q. All right, what did you do then?
'A. I said, 'Well, why are you so glad I got you,' and he said, 'I killed a man,' and he said, 'I don't even know who the man was."
The record is not clear whether or not the jury was present and heard Wooldridge testifying about appellant saying he had killed a man. The judge stated he would instruct the jury if they heard anything other than the two statements "I'm glad you got me', and 'God, I'm glad you got me", not to consider it. He then instructed the jury not to consider any statements other than those two if any were made. According to this record all three of the statements at the time of arrest were spontaneous and within one minute after the time appellant first saw the arresting officer.
Had the trial court ruled the evidence admissible, no reversible error would have been shown. Art. 38.22, Sec. 1(f), Vernon's Ann.C.C.P., provides in part: 'Nothing contained herein shall preclude the admissibility * * * of any statement that is the res gestae of the arrest or of the offense.'
In Gonzales v. State, Tex.Cr.App., 410 S.W.2d 435 (1966), cert. denied 387 U.S. 925, 87 S.Ct. 2044, 18 L.Ed.2d 982, this court held that after an arrest, an oral confession with regard to heroin was admissible under the res gestae exception where the confession was made within seconds after the officers entered the apartment.
If all the elements that make a statement a part of the res gestae are present, the fact that such a statement is made in response to an inquiry does not make this testimony inadmissible. Morris v. State, 157 Tex.Cr.R. 14, 246 S.W.2d 184; Henderson v. State, 154 Tex.Cr.R. 584, 228 S.W.2d 158.
In McCormick & Ray, Texas Law of Evidence, Sec. 1212, p. 88, is found:
'Of course, where the statements or acts of the accused satisfy the requirements of some other exception to the hearsay rule, e.g. spontaneous exclamations (res gestae) they are admissible even though they are incompetent as confessions because made while under arrest.'
Miranda v. Arizona, supra, does not prohibit the introduction of volunteered statements.
The first ground of error is overruled.
Complaint is made that Marian June Bilsha was permitted, while testifying, to identify appellant in the courtroom as the person she saw in the apartment of the deceased, because appellant did not have an attorney when a lineup was held.
The confrontation occurred before June 12, 1968, and the case of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, is not retroactive. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.
Nothing in the present case would show that the in-court identification was tainted by the lineup. The witness Bilsha testified that she went to the lighted apartment of the deceased at about 2:30 a.m. on Sunday to see the deceased and that appellant was standing at a coffee table. Appellant told her the deceased was passed out. She saw the body of the deceased on the floor of the bedroom. She told appellant that the deceased had invited her to have a drink. She declined appellant's invitation to have a drink. She was there about a minute and then went to her apartment.
While testifying she identified appellant, without objection, as being the main in the apartment. She testified that she saw four of five people in a lineup the following Wednesday; that all were of the same race. The officers did not tell her they had the man. There were no hints or suggestions. The lineup was conducted on the 'fair and square'; she had no trouble identifying appellant.
On cross-examination she testified that she would not say that appellant was light-skinned, but that he was lighter than most Negroes; the best she recalled none of the people was lighter than most Negroes except appellant; that, 'I don't remember what all of them looked like; I just recognized him,' and '* * * I didn't take that much time to look at them, that much, because I recognized him at once.'
Appellant admitted, while testifying, that he was in the apartment...
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