Simmons v. State, 46966

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation504 S.W.2d 465
Docket NumberNo. 46966,46966
PartiesTerry Gene SIMMONS, Appellant, v. The STATE of Texas, Appellee.
Decision Date23 January 1974

Jimmy R. James, Houston (Ray E. Moses, Houston, of counsel), for appellant.

Carol E. Vance, Dist. Atty., James C. Brough and Rick Stover, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.


GREEN, Commissioner.

This appeal is from a conviction of murder with malice. Punishment was assessed at ninety-nine (99) years and a day.

The record reflects that on August 2, 1971, during the afternoon, the home of Mrs. Margaret Cook in Houston was burglarized. The next morning, Mrs. Cook left her home at about 9:00 A.M., leaving her daughter Martha, 16 years old, asleep in bed. The doors were locked when Mrs. Cook left the house. At about 12:15 P.M Mrs. Cook returned to her home. She found the utility room door unlocked, the phone off the hook, the television set gone, the sheets were off of Martha's bed, and Martha was gone. Mrs. Cook never saw her daughter, Martha, alive again.

On August 6, 1971, appellant was arrested for the burglary of the Cook home. While in custody, and after being duly advised of his right by a magistrate and the arresting officers, he admitted orally to the burglaries and to being surprised during the second burglary by deceased, and to killing her by drowning her in water. He directed the officers to a point on Green's Bayou in Harris County where he said he had tied her hands together behind her back, tied the stolen television set to her body, and had thrown her, while alive, into the bayou and had sat on her until she died. The body of Martha Cook, with her hands tied behind her, was subsequently found by the officers floating in the running stream about three miles from the spot where appellant admitted placing her in the water.

After appellant was returned to the police station he made a written confession to practically the same facts as he had previously orally admitted.

A qualified pathologist performed an autopsy, and testified that deceased died as the result of drowning, and that the partially decomposed condition of parts of the body were consistent with exposure in the water for a period of three to four days.

Appellant's initial complaint is that the court erred in denying a motion to quash the indictment because of systematic exclusion of qualified persons of 18 to 20 years old from service on the grand jury in Harris County. The indictment in this case was returned on August 17, 1971, at a time when persons under the age of 21 years were not authorized to vote in Texas, and, therefore, were not eligible to sit on grand juries. Tibbetts v. State, Tex.Cr.App., 494 S.W.2d 552; Art. 19.08, Vernon's Ann.C.C.P. In Tibbetts, we determined that Art. 5.10, Vernon's Ann.Tex.Election Code, V.A.T.S., reducing the minimum voting age to 18 years, became effective August 30, 1971, and held that only since that date have citizens between 18 and 21 years of age been eligible to qualify as grand jurors. See also Shelby v. State, Tex.Cr.App., 479 S.W.2d 31; McCrea v. State, Tex.Cr.App., 494 S.W.2d 821.

The first ground of error is overruled.

Appellant's second complaint is that the trial court erred in allowing the State, over objection, to challenge for cause prospective jurors with conscientious scruples against inflicting the death penalty, citing Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. In Solis v. State, Tex.Cr.App., 492 S.W.2d 561, we held that Witherspoon is not applicable where the death penalty is not imposed, citing Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797; Hinkle v. State, Tex.Cr.App., 442 S.W.2d 728; Parks v. State, Tex.Cr.App., 437 S.W.2d 554. See, also, Akridge v. State, Tex.Cr.App., 493 S.W.2d 928. The ground of error is without merit.

Appellant's grounds of error numbers three, four and five relate to the admission and voluntariness of his confession. The grounds are as follows:

'Defendant's Point of Error No. 3

'The trial court erred in refusing to suppress the defendant's confession in view of the evidence which showed it to be involuntary and inadmissible as a matter of law.

'Defendant's Point of Error No. 4

'The trial court erred in overruling defendant's motion to suppress his confessions which were taken in the 'planned absence of counsel.'

'Defendant's Point of Error No. 5

'The trial court erred in failing to grant the defendant's motion to suppress his confession because it was tainted by his illegal detention resulting from his illegal arrest.'

Prior to the trial, appellant filed his motion to suppress any oral and written confessions made by appellant. During the trial, and prior to the offering by the State of any testimony concerning confessions, a hearing was had before the court in the absence of the jury on such motion to suppress. The record of this hearing covers three hundred pages of testimony and many exhibits.

The evidence adduced at the hearing reflects that appellant was arrested on an arrest warrant at his home in Houston about 7:35 P.M. on August 6, 1971. At that time, he was charged with burglary of the Cook home on August 3. The arresting officers at the time of the arrest read to appellant the 'blue card' Miranda type warning, 1 and according to their testimony same was fully explained to him, and he told them that he fully understood. Appellant was taken to a magistrate within 30 minutes after his arrest who read and explained to him his rights as provided by Art. 15.17, V.A.C.C.P. Appellant was asked by the magistrate if he understood the warning, and he replied that he did. Appellant was then taken to the police station, there officers interrogated him. He was again given the 'blue card' warning by officers, which included his rights to counsel, and to remain silent, and was asked if he wished to use a telephone. He stated he did not want to have a lawyer, and did not care to make a phone call. At first he denied his guilt, and at about 9:30 P.M. agreed to take a lie detector test. When he was taken to the polygraph room preparatory to executing a written agreement, and after the lie detector test was explained to him, he admitted his guilt of the burglary and murder orally to the polygraph operator. He stated that he had gone to the Cook home on his bicycle on August 2nd, entered it, and stolen some money. He returned in his mother's car on the next morning to get a television set. While in the house, he was surprised by the deceased, Martha Ann Cook. He tied her to the bed with some electrical cord, then, fearing that she could identify him and that she had seen the car license, he took her and the television set to a place on Green's Bayou in Harris County, tied her hands behind her back and to the television set, and rolled her into Green's Bayou, where he sat on her until she drowned. Appellant then offered to take the officers to the place where he had drowned deceased.

According to the evidence of the peace officers, shortly after 11:30 P.M., appellant, in a car with several officers, directed the officers to a location on Green's Bayou which he described as the place where he drowned deceased. After a search, a knob from a television set, identified as similar to that stolen from the Cook home, was found on the bank of the stream. Subsequently, on the afternoon of August 7, as the result of the information furnished by appellant, the body of deceased was found about three miles down stream from the spot where the search started. Her hands were tied behind her back, and the body was partially decomposed.

At about 1:00 A.M. on August 7, hours before the body was found, appellant was taken back to the police station, where the Miranda warning was again given him by the investigating officers. He was asked if he wanted to have a lawyer present, and he expressly waived the presence of one, as well as the other rights specified in the warning. Thereafter, appellant agreed to make a written statement and did make one, confessing to the commission of the burglaries of the Cook home on August 2nd and 3rd, the taking of deceased to Green's Bayou, and the drowning of deceased, practically as he had stated in his previous oral confession. The confession containing the usual warning and waiver of rights, was typed, read to appellant, who stated that he understood it, and signed by him in the presence of two television newscasters, who witnessed the signing.

Appellant testified at the hearing. He stated that he had been taking heroin with regularity about two and a half years. He went to a methadone clinic in Fort Worth in May, 1971, and received treatment; however, he remained an addict. He had an overdose of heroin on the evening of August 4, 1971, and was taken to a hospital. He was arrested there on a heroin charge, and made bond on August 5. His last 'shot' of heroin prior to his arrest on August 6 was on the afternoon of the previous day. He was beginning to feel the need of another shot while under arrest at about 9:30 P.M., and started suffering the symptoms of heroin withdrawal. He remembered being arrested on August 6, and of being warned of his rights by the magistrate, and of being questioned by police officers. He had not had anything to eat from noon, August 6, until 3:30 or 4:00 the next morning. He asked to get in touch with his mother, but his request was ignored. He knew he had a lawyer in his heroin case, but did not ask to talk to him. He made no complaints of heroin withdrawal symptoms to the officers. He denied having volunteered to take a lie detector test. He testified that he had denied participating in the burglary case, and of any knowledge of the whereabouts of Martha Ann Cook, until he was taken in the polygraph room, and that he was influenced to make the statement he made by the...

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