Rayford v. State

• Decision Date: 17 January 1968
• Docket Number: No. 40939,40939
• Court: Texas Court of Criminal Appeals
• Parties: Palmer RAYFORD, Jr., Appellant, v. The STATE of Texas, Appellee.

Page 300

423 S.W.2d 300

Palmer RAYFORD, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 40939.

Court of Criminal Appeals of Texas.

Jan. 17, 1968.

D. Dalford Todd, Dallas, for appellant.

Henry Wade, Dist. Atty., Malcolm Dade, Joe K. Hendley, Kerry P. FitzGerald and William S. Mason, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

WOODLEY, Presiding Judge.

The offense is robbery with firearms; the punishment, 50 years.

The indictment, returned April 26, 1965, alleged that appellant and Sammy Joe Jones acting together on or about March 5, 1965, made an assault upon Sophie Salverino and by assault and by violence and by putting her in fear of life or bodily injury and by using and exhibiting a gun, fraudulently took from the person and possession of Sophie Salverino without her consent and against her will one purse, one billfold and $15.00 in money.

The state having withdrawn its notice of intent to seek the death penalty and having given notice that it would not, the case came on for trial on September 9, 1966, and the jury having found appellant guilty, appellant elected to have the same jury assess the punishment.

The evidence upon which the state relied for conviction is summarized in the state's brief as follows:

'On or about the 5th of March, 1965, Sophie Salverino and her husband Frank, were preparing to close their grocery store in Dallas, Texas. At about 10:00 p.m., her husband walked out to get into her car, Sophie to follow when the car had been started. As soon as Frank started to open the car door, Sophie saw a flash and heard a 'bang' and shouted, 'Oh my God! Frank has been shot.' Sophie went to aid her husband, taking her purse, which she already had in her hand. While attempting to aid Frank, she placed her purse on the seat of their car, from where it disappeared. Four days later, the Appellant was arrested and made an oral statement which led police officers to the recovery of Sophie's purse.'

Appellant's brief sets out the state's evidence as follows:

'The witness, Sophie Salvarino, testified for the State that her husband was shot in front of their grocery store, and that she lost a purse, and contents thereof, which had been placed in a truck nearby, but she did not testify that there was any direct contact with her person.

'J. L. Hoenburger, who worked for Sophie Salvarino in the grocery store testified about the condition of Mr. Salvarino, and Mrs. Salvarino in front of the store.

'The officers for the City of Dallas, Texas, testifying in this case testified about the arrest of the defendant and the subsequent interrogation and oral confession, which was reduced to writing, received from the said defendant, but no one testified of having seen the defendant at the scene of the robbery, or connecting him with same, other than the defendant's statement in this case.'

Mrs. Salverino testified that she had a purse in her hand when she went to the car to aid her husband and put the purse on the car seat. Asked if she was scared she replied: 'Certainly I was. Who wouldn't be?' She further testified that her husband died in her arms.

She identified the purse which was found five days later as the result of the oral statement or confession of appellant, in which he confessed to having participated in the robbery. She also identified the contents of the purse which had been found spilled on the ground near the purse which was hanging open in a tree. She testified that the purse she put on the car seat, and its contents, belonged to her and that she did not give appellant or anyone else permission to take her purse.

We are in accord with the state's contention that Mrs. Salverino did not relinquish possession of her purse and its contents by placing them on the car seat, and that one may be robbed of property not taken from his person. Ibeck v. State, 112 Tex.Cr.R. 287, 16 S.W.2d 232; Goodrum v. State, 172 Tex.Cr.R. 449, 358 S.W.2d 120.

Also, we find no merit in appellant's contention that Mrs. Salverino was not put in fear of her life or bodily injury. Cranford v. State, Tex.Cr.App., 377 S.W.2d 957.

Appellant's grounds of error 2 to 6 inclusive relate to the admission in evidence of the oral statement or confession of appellant and the evidence obtained as a result of such confession.

Ground of error No. 2 is: 'The trial court erred in allowing, over the defendant's objections and exceptions, the testimony from state's witnesses as to the oral statement and confession made by the defendant in this cause.'

Ground of error No. 3 is: 'The court erred in finding that the statement received into evidence in this cause met the requirements of the law to make it voluntary and useful against defendant in a criminal case.'

The robbery was committed March 5, 1965, and the statement was made March 9, 1965. Trial was on September 9, 1966.

The trial judge, upon the evidence adduced before him, found that the oral statement of appellant which implicated him as a principal in the robbery was given in accordance with the statutes of the State of Texas.

The applicable statutes at the time the statement was made were Article 726 C.C.P. 1925, now Art. 38.21 Vernon's Ann.C.C.P. (not materially changed) which provides:

'The confession of a defendant may be used in evidence against him if it appear the same was freely made without compulsion or persuasion, under the rules hereafter prescribed.'

and Art. 727 C.C.P. 1925, which as it related to oral confessions provided in part:

'The confession shall not be used if, at the time it was made, the defendant was in jail or other place of confinement, nor while he is in custody of an officer, * * *. unless in connection with said confession, he makes statements of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed. * * *'

Article 38.22 of the 1965 Code of Criminal Procedure, in effect at the time the oral confession was admitted in evidence, contained the identical provision, but by reason of the inadvertent omission of a portion of the succeeding sentence of Art. 727, supra, (which related to the statement of a defendant unable to write his name, who signs it by making his mark), Art. 38.22 of the 1965 Code added to the above quoted provision of Art. 727 the following:

'* * *, such statement shall not be admitted in evidence, unless it is witnessed by some person other than a peace officer, who shall sign the same as a witness.' ¹

The evidence from which the trial court concluded that the oral confession was admissible included the following:

About 4 or 4:30 P.M. on March 9, 1965 (four days after the robbery), Detective Parks received information from appellant's codefendant Sammy Joe Jones that appellant was with him when he committed the robbery and killed Mr. Salverino. Parks and his fellow officers then went to appellant's home to arrest him and took him to jail.

About 7:30 P.M. appellant was brought out of jail into the Homicide Office.

Detective Verlon Monaghen testified in part:

'Q. I will ask you if before anything was said, if you knew the whereabouts of any of the fruits of the crime involving Frank Salverino nad Sophie Salverino?

'A. No, I dod not.

'Q. At that time, did you know there was a purse and a billfold missing that belonged to Mrs. Salverino?

'A. Yes.

'Q. I will ask you, sir, if Captain Fritz gave this Defendant a warning before a conversation was begun with him?

'A. Yes.

'Q. Will you tell the jury what warning was given this Defendant?

'A. He was advised that he didn't have to make a statement at all, but that if he did make one, it could be used against him on the trial of the offense, and he was advised that he had a right to an attorney. That's about all.

'Q. After that, did Captain Fritz, yourself, and M. G. Hall have a conversation with this Defendant?

'A. Yes.

'Q. Will you tell the Judge what that conversation was, please, sir?

'A. Captain Fritz talked with the Defendant and asked the Defendant if he wanted to tell what happened and the Defendant said he would be willing to tell what happened and Captain Fritz said to go back down to the room with the officers and tell them what happened.

'Q. Was this done?

'A. Yes, it was.

'Q. How did you go about taking down what he told you?

'A. I copied it down in longhand on a piece of paper and I typed it up after that.

'Q. You wrote it down in longhand first, yourself, and then you typed it up, yourself?

'A. Yes, I did.

'Q. Before you started talking to him, did you give him any type of warning?

'A. I told him the same thing Captain Fritz did, that is, that he didn't have to make a statement, but if he did, it could be used against him in the trial.

'Q. After you had typed up this memorandum of what he told you, did you have a witness come in and witness taking the statement?

'A. Yes, I did.

'Q. Who was that person, please?

'A. He was a newspaper reporter, Warren Bosworth.

'Q. Is he a police officer?

'A. No, he is not.

'Q. Will you tell us what he told you regarding this offense--what he told you happened?

'A. He said he was down at the Goodluck hamburger place on Dolphin with a boy named Coffee where they met Sammy Joe Jones, Jr., and Sammy had an automobile and said he was going to make some money and wanted to know if they wanted to go along and they did go along and Sammy drove over to his girlfriend's house where he kept a pistol and picked it up and drove around awhile before he decided to hit the grocery store on, I believe, Scyene Road and parked the car behind the grocery store near some apartments and found that the grocery store was closed and Sammy said, 'We will wait until the people leave out,' and Sammy went beside the grocery store and had the gun and when the people came out of the store, Sammy fired the gun and then we ran back to the car where...