Smith v. State

• Decision Date: 16 February 1977
• Docket Number: Nos. 51370,51371,s. 51370
• Citation: 547 S.W.2d 6
• Parties: Donald Elliot SMITH, Appellant, v. The STATE of Texas, Appellee. Louis Albert SMITH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 6

547 S.W.2d 6

Donald Elliot SMITH, Appellant, v. The STATE of Texas, Appellee.

Louis Albert SMITH, Appellant, v. The STATE of Texas, Appellee.

Nos. 51370, 51371.

Court of Criminal Appeals of Texas.

Feb. 16, 1977.

Rehearings Denied March 9, 1977.

Polk Shelton, Austin, for Donald Elliot Smith.

Laird Palmer, Austin, for Louis Albert Smith.

Richard A. Fielder, Dist. Atty., Lockhart, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

These are appeals from convictions under the former Penal Code for robbery by firearms. Appellants were tried jointly. The jury assessed each appellant's punishment at ninety-nine years' imprisonment.

The appellants' first ground of error asserts that their confessions were improperly admitted into evidence. Appellants contend that their confessions were shown to be involuntary and that the State failed to rebut sufficiently this showing as required by our decisions in Sherman v. State, Tex.Cr.App., 532 S.W.2d 634, and Farr v. State, Tex.Cr.App., 519 S.W.2d 876.

We agree with this contention insofar as it relates to the admission of Louis Albert Smith's confession. We hold, however, that Donald Elliot Smith's confession was properly admitted into evidence.

LOUIS ALBERT SMITH'S CASE

Louis Albert Smith, in the company of his attorney, surrendered to the F.B.I. in New Orleans on May 29, 1973. After being charged with robbery he was placed in the New Orleans House of Detention for confinement. He signed written statements confessing to the robbery for F.B.I. agents P. M. King and B. S. Thomas on June 5 and June 6, 1973.

Louis Smith testified that prior to meeting with the F.B.I. agents and giving the first statement he was taken upstairs in the House of Detention and beaten and threatened by New Orleans police, who told him he would be returned to Texas and receive worse treatment if he did not sign a statement confessing to the Texas robbery. During the meeting on June 5, at which he signed the first statement, the F.B.I. agents presented him with the prepared statement and promised him he would receive a probated federal sentence in New Orleans if he signed it, and that he would remain in federal custody instead of being returned to Texas. Smith testified he thought the meeting with the F.B.I. and the prepared F.B.I. statement were a continuation of what he had been told by the New Orleans police during his previous beatings.

After signing the first statement he was returned to his cell, and then late that night or about 3:00 a. m. the next morning he was taken back upstairs by the local police and beaten and threatened again because, according to Smith, the first statement he had signed was the wrong statement. He met again with the F.B.I. agents on June 6 and signed the second statement confessing to the robbery and, additionally, to a rape committed during the robbery. Smith also testified that he signed the statement only because he was beaten by the New Orleans police and was threatened by them with further beatings if he would not sign.

Agent King, on being called as a witness for the State, testified that he and Thomas interviewed Louis Smith at the New Orleans House of Detention on June 5 and 6, 1973. He testified that during the June 5 interview Smith stated that he wanted to get the matter cleared up, that he signed a waiver of rights form, and that physically he appeared normal. After giving and signing the June 5 confession, according to King, Smith was told by the agents that they did not believe it in its entirety because the rape was not admitted. Smith allegedly replied, "All right, I'll admit the rape but I'll talk to you tomorrow and give you a statement tomorrow." The June 5 interview was then terminated. On June 6, King testified, Smith "came voluntarily, read his (waiver of rights) form, signed it, and proceeded to give us the story."

On cross-examination King stated that he had no knowledge of whether Louis Smith was coerced, beaten, or threatened by law enforcement officers before the interviews in an attempt to induce him to sign any statements.

Agent Thomas testified that he and King interviewed Louis Smith at the New Orleans House of Detention on June 5 and 6. He corroborated King's testimony that on June 5 Smith signed the waiver of rights form and said he wanted to clear the record and get the matter straightened out, and that after taking the June 5 statement the agents indicated they did not believe it entirely, prompting Smith's reply, "Well, if you don't believe me completely, come back tomorrow and I'll give you a statement to set the record straight." He testified the June 6 statement was taken after Smith signed another waiver of rights form, and that Smith said he was making the statement on the advice of his lawyer and because he wanted to get the matter resolved and wanted the truth to come out. On cross-examination Thomas testified that he had no knowledge of what was said to Smith or done to Smith while confined in the New Orleans House of Detention, and that he did not know whether any threats were made or any effort made to abuse or coerce Smith into giving a confession. No New Orleans officers testified.

This record demonstrates that the admission of Louis Smith's confession falls directly within the rule that required reversal in Farr v. State, and Sherman v. State, supra, in which it was stated:

"It has long been the law of this State that whenever the testimony of the accused as to alleged coercive acts is undisputed, then as a matter of law the confession is inadmissible. (Citations omitted.)" Farr, at 880.

"Neither of the officers who testified at the hearing denied or could deny either assertion because there was no showing that either was present when the statements were allegedly made.¹ Cochran, who could have denied the assertions, inexplicably failed to testify. Therefore, under any standard of the State's burden of proof, the trial court abused its discretion in overruling appellant's motion to suppress because appellant's allegations of coercion were not contradicted.²

1. Cf. Farr v. State, Tex.Cr.App., 519 S.W.2d 876, 880 n. 4: 'Had the police officers testified and denied any coercion or someone present at this incident denied any use of force, thus contradicting appellant's testimony, the trial judge as trier of fact could have determined the confession to be voluntary.' (Emphasis added)

2. It should be understood that if the State had presented a reasonable explanation of Cochran's failure to testify, such as his death or their inability to locate him, the trial court would have been free to disbelieve appellant's testimony. When the State neither placed Cochran on the stand nor explained his absence, the obvious inference is that he did not testify because he could not deny appellant's allegations. See Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967); Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963). No such inference could be made, however, if there were an explanation of the absence of the witness." Sherman, at 636.

Louis Smith's contention must be sustained because his allegations of coercion were not rebutted by the State. His conviction must be reversed and the cause remanded for a new trial.

DONALD ELLIOT SMITH'S CASE

Donald Elliot Smith was arrested on the afternoon of May 23, 1973, near Slidell, Louisiana, in connection with a Mississippi robbery. F.B.I. agent Thomas observed appellant at the scene of the arrest. He was taken to a local jail for the night, and the next day was returned to the vicinity of his arrest to search for hidden money from the Mississippi robbery. On the afternoon of that day, the 24th, appellant approached F.B.I. agent Thomas, who was accompanying appellant and local police officers on the search, and orally confessed to the Texas robbery. The next day Thomas took a detailed oral confession to the Texas robbery from the appellant. Later that day he was driven from Slidell to Jackson, Mississippi, where on the 26th he met with a Texas Ranger and two deputy sheriffs from Caldwell County who took a written confession. It was this confession that was introduced against him at trial and is now challenged as being the result of beatings and threats.

Donald Smith testified to the following mistreatment. On May 23 after his arrest he was beaten by local Louisiana officers in the car on the way to the jail. During the night of May 23-24 he was beaten at the jail. At 3:00 a. m. on May 24 he was transferred to another jail and beaten. During the search for the money on May 24, according to appellant's testimony, he was beaten some more. He also testified that no F.B.I. agent was present during this search. On May 25 he was again taken on a search for the money and again beaten, this time in the presence of the F.B.I. agent, who offered to protect him if he would answer questions. He testified, "I gave him (Agent Thomas) a statement to stop them (the Louisiana officers) from killing me." He also testified that he refused to sign this statement. After being taken to Jackson, Mississippi, appellant gave the Texas peace officers a statement after they told him, according to the appellant, "You'll never have to come to Texas no more. All we need this information for is to close our records out," and "We know all of this anyway, we know what you did anyway, because you've already told us what you did. We just need this, something to close our records out."

The State, in its effort to establish the voluntariness of the confession, called the three Texas officers who went to Jackson and F.B.I. agent Thomas who was present during some of the events in Louisiana. No Louisiana officers were called.

In direct conflict with appellant's denial of his presence on May 24, agent Thomas stated he accompanied the expedition on its search for the money throughout the day. Late that...