Moulton v. State, 48337

• Citation: 508 S.W.2d 833
• Decision Date: 01 May 1974
• Docket Number: No. 48337,48337
• Parties: John Henry MOULTON, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 833

508 S.W.2d 833

John Henry MOULTON, Appellant, v. The STATE of Texas, Appellee.

No. 48337.

Court of Criminal Appeals of Texas.

May 1, 1974.

Arturo C. Gonzalez, Del Rio, for appellant.

John R. Pettit, Dist. Atty., and Edwin E. Springer, Asst. Dist. Atty., Del Rio, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

QUENTIN KEITH, Commissioner.

Appellant was indicted for murder with malice and the jury assessed his punishment at thirty-five years' imprisonment.

Although the appellant does not challenge the sufficiency of the evidence to sustain the conviction, we set out a few of the salient facts necessary for treatment of the contentions which are advanced.

Appellant and Everette Arthur Phillips, Jr., were jointly indicted for the murder of Ignacio Garcia by choking him on the neck with a wire and a piece of cloth. At the time of the commission of the offense, appellant and Phillips were prisoners in the county jail of Kinney County in Brackettville. The deceased was the jailer and had entered the jail block to bring the afternoon meal to the prisoners. There was but one other prisoner, Jesus Sandoval, confined at the time. When Garcia entered, appellant began choking him; or, to use his own words, tried to put 'a sleeper hold' on the deceased.

Appellant and Phillips bound and gagged the deceased, tied up Sandoval, locked the deceased and Sandoval in the jail, stole a car in Brackettville and started toward Eagle Pass. They were apprehended a short time after their escape from custody.

Upon appellant's motion, venue was changed to Val Verde County, while venue of the trial of his co-defendant was changed to Maverick County. The State proved the legal incarceration of appellant, his escape from the jail, his apprehension and the voluntary nature of his confession. It likewise proved by the pathologist that death was caused by extreme pressure applied to a wire and cloth around the neck of deceased, causing a fracture of the larynx and suffocation.

Appellant, Phillips, and Sandoval each testified upon the trial of the case with appellant admitting to his acts in binding and gagging the deceased, although he denied using the wire around the deceased's neck. He and Phillips testified that Sandoval was a willing participant in the tying up of the deceased, although the officers found Sandoval in the locked jail with his hands bound behind his back and a gag which he had worked loose from his mouth after the escape of appellant and Phillips.

Appellant has but two grounds of error, and we will first turn our attention to his second complaint. ¹ The confession was offered in evidence after the court concluded the same was voluntarily made. The confession was read to the jury by the District Attorney; however, it is not included in our record as an exhibit.

It was appellant's responsibility to obtain a complete transcript of the record for use upon appeal and to be certain that all of the exhibits necessary for a consideration of his grounds of error be included therein. Cf. Conerly v. State, 412 S.W.2d 909 (Tex.Cr.App.1967); Goodings v. State, 500 S.W.2d 173 (Tex.Cr.App.1973). Had appellant complied with the requirement of Sec. 9, Art. 40.09, Vernon's Ann.C.C.P., by making an appropriate record reference, this omission would have become apparent before the brief was filed. Instead, counsel for Both parties have quoted an isolated sentence which apparently was contained in appellant's confession and have joined issue thereon.

Although not included in the record, the confession is available to this Court since it was admitted into evidence before the jury. Boening v. State, 422 S.W.2d 469, 471 (Tex.Cr.App.1967), and, since there is no dispute between the parties as to the accuracy of the single sentence relied upon by appellant, we consider the ground of error as presented.

The so-called exculpatory statement forming the basis of the present complaint reads:

'We (appellant and Phillips) were intending to grab him (deceased) and scare him long enough to get the keys and lock him in the cell, but he started yelling so we asked him not to yell, and we tried to quiet him down to put him to sleep, evidently it did not work out that well.'

Appellant was not entitled to a charge on exculpatory statements upon the basis of this statement contained in his confession. In Simon v. State, 488 S.W.2d 439, 443 (Tex.Cr.App.1972), the Court held: '(A) statement must amount to an admission plus an assertion that would exculpate an accused before such a charge is required.' Or, stated differently and more succinctly, 'A statement is not exculpatory unless it exculpates.' Perez v. State, 160 Tex.Cr.R. 376, 271 S.W.2d 281, 284 (1954). See also, Mendez v. State, 168 Tex.Cr.R. 315, 327 S.W.2d 454, 456 (1959); Stokes v. State, 506 S.W.2d 860 (Tex.Cr.App.1974).

Moreover, appellant testified as a witness on his own behalf and his testimony was substantially to the same effect as the part of the confession claimed to be exculpatory. The trial court submitted the case fairly under every defensive theory finding support in the testimony. A charge on exculpatory statements was not required. Madden v. State, 171 Tex.Cr.R. 80, 344 S.W.2d 690 (1961); Vaughns v. State, 172 Tex.Cr.R. 465, 358 S.W.2d 133 (1962); Bruce v. State, 402 S.W.2d 919 (Tex.Cr.App.1966); Williams v. State, 464 S.W.2d 114 (Tex.Cr.App.1971); Pogue v. State, 474 S.W.2d 492, 495 (Tex.Cr.App.1971). Ground of error number two is overruled.

Appellant complains in his first ground of error that the...