Sellars v. State, 38620

• Decision Date: 08 December 1965
• Docket Number: No. 38620,38620
• Citation: 400 S.W.2d 559
• Parties: Calvin SELLARS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 559

400 S.W.2d 559

Calvin SELLARS, Appellant, v. The STATE of Texas, Appellee.

No. 38620.

Court of Criminal Appeals of Texas.

Dec. 8, 1965.

Rehearing Denied Feb. 23, 1966.

Second Motion for Rehearing Denied March 30, 1966.

Howard O. Lake, Rex Emerson, Court-appointed attorneys, S. John Odom (on rehearing only), Houston, for appellant.

Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Carl E. F. Dally, Gus J. Zgourides and Jimmy James, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

McDONALD, Presiding Judge.

The offense is robbery with firearms; the punishment, death.

The appellant was jointly indicted with Sam Hoover, John Oscar Young, and Samuel Spivey. A severance was granted, and appellant was tried alone in this case. The defendant, Sam Hoover, was convicted on the second count of the same indictment as an accomplice to robbery with firearms, and was given a term of sixty years confinement in the Texas Department of Corrections. His case was affirmed by this Court in Hoover v. State, Tex.Cr.App., 390 S.W.2d 758. John Oscar Young's case (Ex parte Young, Tex.Cr.App., 397 S.W.2d 74) is currently on appeal before this Court.

The record is voluminous, but the evidence regarding the robbery is substantially the same as that in the Hoover case. However, it is necessary for us to here recite it in detail because of some testimony by different witnesses and because different contentions are made in the two cases, and the two convictions were upon different counts of the indictment.

On the evening of the day named in the indictment, three masked men descended on the Schepps' home on Memorial Drive in Houston. Outside the home they accosted Mrs. Tuck, an elderly governess employed by the Schepps, and knocked her unconscious. Two of the robbers, armed with a pistol and sawed-off shotgun, went into the main house to subdue Mr. and Mrs. Schepps and the third brought Mrs. Tuck into the house shortly thereafter. For some three hours Mr. and Mrs. Schepps and Mrs. Tuck were confined to a bedroom on the second floor of the Schepps home by the three intruders. The Schepps' ten-month old infant was threatened, and a shot fired into the baby bed where the child lay. All three victims were bound, gagged and repeatedly struck and kicked. The masked men were in search of a large sum of money they believed to be on the premises, and set about to compel Mrs. Schepps to reveal its whereabouts. Mrs. Schepps was burned with a red-hot butcher knife across her upper abdomen; she was burned with cigars and cigarettes on her face and various parts of her body; an electric lamp cord was torn from the lamp, plugged into the wall, and she was repeatedly shocked with the loose end on her teeth, breast and private parts; as a result of a blow to her face, her jaw was broken and some of her teeth knocked out; a fireplace poker and one of the pistols were placed in her vagina; as the robbers were leaving, one of them, with no provocation whatever, shot her in the thigh with a .44 magnum pistol as she lay prostrate on the floor. She was taken to a hospital in a semi-conscious condition and remained there for sixteen days. Mr. Schepps was hospitalized for a like period of time as a result of broken ribs, a serious head and eye wound and other injuries. Mrs. Tuck's physical injuries were not so serious, and she remained in the hospital a shorter period of time.

In the course of the robbery, some $3,900 in money, a man's ring containing a round-cut diamond, a woman's necklace with an emerald-cut diamond, and various other articles of jewelry were taken from the Schepps' home. The stone in the diamond ring weighed 4.83 carats; the one in the necklace, 2.70 carats. State's witness, Mrs. Marjorie Gibson, testified that she found articles of clothing in a garbage can in front of her home, some 15 blocks from the home of this appellant, on the morning following the robbery. The articles included a pair of man's slacks, a black shirt, a hat, a pair of gloves and rolls of adhesive tape. An examination of them revealed fibers identical with the carpet from the Schepps' home, a human hair found to be identical with that later removed from appellant, and traces of human blood of the same type as Mr. Schepps' blood.

The officers who recovered the articles of clothing recognized the trousers as similar to the ones they had seen appellant, Sellars, have on during a previous arrest.

On the afternoon of March 17th, after leaving the place where he worked, the appellant was arrested by two detectives of the Houston Police Department. The arrest occurred at approximately 4:00 p.m. The appellant, thereafter, made a written statement, confessing to his participation in the crime and implicating John Young and Samuel Spivey. This written statement was completed at approximately 10:00 p.m. on the 17th day of March, 1964. The statement was not signed at this time but officers, accompanied by the appellant, went to a place along the Gulf Freeway where the appellant had said that items taken in the robbery had been thrown. At approximately midnight on the same day, the appellant was taken to police headquarters where he signed the written confession he had already made. In the statement which he made, appellant related in detail some of the incidents that took place during the robbery, including his participation in the torture of the victims of the robbery and his taking of a portion of the money and jewelry obtained in the robbery.

The evidence in this record also showed that spent bullets recovered from the victim's home had been fired from a gun which had been in the possession of John Oscar Young a short time after the robbery, which he had given to another party.

It was further shown that after the search of the co-defendant Sam Hoover's home, certain loose diamonds were recovered which were identified by the victim, and by the jewelers who had mounted them for the victim, as being those owned by the Schepps.

Another witness testified that he was in the office of Sam Hoover on March 12th; that the co-defendant John Oscar Young was there; that after Young had left, Hoover showed the witness a man's ring containing a large diamond. Hoover also showed the witness a woman's brooch or pin. The defendant Hoover gave this witness and his mother and family money to leave the State, and they did leave the State and were brought back only after diligent search by investigators who found them in Kentucky.

The record reflects that witnesses saw a car, of similar model and color to that belonging to appellant, parked close to the Schepps' residence at the time of the robbery.

A Houston Police Officer, C. V. Stone, testified that as a result of a conversation with Calvin Sellars on March 20th, he went to the home of the appellant's mother; that the appellant helped him recover property and helped make an itemized list of some of the property taken in the robbery. The property consisted of a watch, several pairs of cuff links, and other jewelry. The appellant told the officer, in the same conversation in which he told him where the fruits of the crime could be recovered, that he, John Oscar Young, and Samuel Spivey had been involved in the robbery; that they went to the scene of the robbery in the appellant's automobile, and further related to him some of the atrocities that had been committed upon the victims of the robbery. The appellant also related to the officer that Sam Hoover had sent them to the scene of the robbery and that while they were there, they received instructions from him.

The appellant took the stand and testified in his own behalf, denying any participation in the robbery, and testified that his confession was the result of coercion and duress.

The mother of the appellant testified that on the night that the robbery was committed, her son was present in her home with his wife and two babies.

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