Patterson v. State

• Decision Date: 21 June 1967
• Docket Number: No. 40464,40464
• Citation: 416 S.W.2d 816
• Parties: Floyd Lee PATTERSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 816

416 S.W.2d 816

Floyd Lee PATTERSON, Appellant, v. The STATE of Texas, Appellee.

No. 40464.

Court of Criminal Appeals of Texas.

June 21, 1967.

Don Metcalfe, Howard B. Law, D. B. Mason, Dallas, for appellant.

Henry Wade, Dist. Atty., Frank Watts, Tom Reese and Malcolm Dade, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is Murder with Malice; the punishment, assessed by the jury at ninety-nine (99) years confinement in the Texas Department of Corrections.

Appellant was tried jointly with Willie Sewell in Criminal District Court No. 4 of Dallas County commencing on the 19th day of May, 1966. The Court charged the jury on the law of principals.

In his first ground of error, appellant contends that the trial court erred in failing to charge on the law of circumstantial evidence.

The record reveals that the deceased, Leland Floyd Hendley, a forty-three year old white insurance agent, was making collections in an apartment area or complex in the northern part of the City of Dallas between 6:00 P.M. and 7:00 P.M. on February 15, 1966, when he was attacked and beaten. The Dallas Medical Examiner testified death resulted from multiple injuries and cerebral edema. Mrs. Lucille Bennett, who lived nearby, witnessed part of the attack upon the deceased at approximately 6:45 P.M., but was unable to identify the assailants except that they were colored males wearing trench coats. She related that when she first observed the attack, the deceased was on the ground and 'they were strangling him'. Upon her approach, the two assailants fled, and she expressed her amazement that in the dark they had been able to run under rather than into the nearby clothesline. A short time later after the police and an ambulance had been summoned, the deceased expired at the home of Mrs. Bennett.

Without any showing as to personal money the deceased may have had with him at the time, it was determined from insurance company records that the deceased had collected 136.09 on the day of his death.

On February 18, 1966, appellant and Willie Sewell were arrested.

Jackie Harris, a friend of both the appellant and Sewell, testified that the appellant entered a pool hall in East Dallas on the night of the offense between 7:00 P.M. and 8:00 P.M. and told him that he (the appellant) 'had big money', and that he and Sewell 'got an insurance man'. Harris related the appellant gave him a dollar and paid Jarvis Smith a dollar to take him (appellant) home.

The following day, February 16th, Harris testified appellant returned to the pool hall with a new sweater and pants with his hair newly 'processed'.

Harris revealed that on February 17th, he saw Willie Sewell and asked him, '* * * did he do it?', to which Sewell replied, 'Yes.' Harris further testified, 'I asked him (Sewell) if he knew the stud was dead and he said 'yes' and he said 'he was scared'. He told me him and Floyd had whipped the stud. He said Floyd damn near choked the stud to death'. Harris said at the time Sewell had a pint of Gordon's and stated he had 'paid for all of it'.

The record also reflects that on February 17th, Willie Sewell, who was unemployed, but was a golf caddy on occasion paid $18.31 for the hat he was wearing at the time of his arrest.

Maurice Coursey, a friend of the appellant for seven years, testified he saw the appellant at a bus stop on the night of February 17th and appellant stated 'he had made some money off an insurance man'. To appellant's statement, the witness Coursey replied, 'Do you know the man died and you are in big trouble and you shouldn't be talking about it.'

Charles Walker, another friend of the appellant and Sewell, saw appellant the day following the offense and related that appellant told him that he and Sewell had 'made some big money'; that they had gotten 'about $140.00', which had been divided between them. After this conversation, Walker, on February 17th, called Sewell on the telephone and asked to borrow money and testified that Sewell replied, 'He didn't know Patterson (appellant) would be talking about the money.', and further that 'him and Floyd had robbed an insurance man in North Dallas'.

J. W. Thomas testified that on February 18th, in the presence of appellant and Sewell, he told Sewell that he had heard that Sewell and appellant had killed this insurance man in North Dallas. To this Sewell laughed and replied, '* * * he thought Floyd Lee was going to choke the m_ _ f_ _ to death.', and that '* * * they like to have got caught.', and that '* * * later he went to this lady's house.'

Neither the appellant or Sewell testified. Six witnesses were called on the issue of alibi. Such testimony, as well as other evidence in the record, reflects that Willie Sewell lived with his mother and stepfather approximately two blocks from the scene of the attack; that he was home most of the day of the offense; that the appellant was at such apartment with Sewell from 3:00 or 4:00 o'clock in the afternoon on such date until he got a ride to East Dallas at sometime after 6:30 P.M.

While alibi testimony placed Sewell at his home at the approximate time of the attack on the deceased, it also reveals that shortly thereafter he appeared at the apartment of Mrs. Bennett's son and daughter-in-law, and after observing flashing red lights, went with them to the apartment of Mrs. Bennett, the lady whose appearance on the scene had terminated the assault.

Appellant recognizes the well established rule that proof of an accused admitting or confessing to having killed the deceased is direct and not circumstantial evidence of the main inculpatory fact and a charge on circumstantial evidence is not required when proof of such admission or confession is in evidence. 4 Branch's Anno.P.C.2d 358, Sec. 2050; Cavazos v. State, Tex.Cr.App., 365 S.W.2d 178; Stevenson v. State, 169 Tex.Cr.R. 431, 334 S.W.2d 814, 815. He, nevertheless, contends in view of his timely objection in writing to the Court's charge and the nature of the admissions that the Court erred in failing to charge on circumstantial evidence. He cites and relies upon Martinez v. State, 151 Tex.Cr.R. 316, 207 S.W.2d 387. In Martinez, it was held that the written confession of the accused was insufficient to make a case against him by direct evidence, and that a charge on circumstantial evidence should have been given by the trial court. Though the accused Martinez confessed he had taken some turkeys there was nothing in the confession to show they were the same turkeys taken from the injured party or from his premises. The meaning of the Martinez case is clear that even though the accused confesses or admits to the commission of a crime, it must be shown by the evidence and the confession of the accused that the crime admitted is the same crime for which the defendant is being tried if the circumstantial evidence charge is not given. We adhere to the rule laid down in the Martinez case, but we cannot conclude that it is...