Treadway v. State

• Decision Date: 19 February 1969
• Docket Number: No. 41868,41868
• Citation: Treadway v. State, 437 S.W.2d 572 (Tex. Crim. App. 1969)
• Parties: Floyd Allen TREADWAY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 572

437 S.W.2d 572

Floyd Allen TREADWAY, Appellant, v. The STATE of Texas, Appellee.

No. 41868.

Court of Criminal Appeals of Texas.

Feb. 19, 1969.

Gene Barrington, Silsbee, for appellant.

R. A. Richardson, Dist. Atty., Kountze, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

BELCHER, Judge.

The conviction is for rape; the punishment, seven years.

The appellant urges the following grounds of error for reversal:

'It was and is error for the trial court to admit the alleged confession of defendant before the jury without said trial court first deciding in a separate hearing the court's findings of disputed facts regarding whether or not said alleged confession of defendant was voluntarily given by defendant.

'It was and is error for the trial court to admit the alleged confession of defendant before the jury when the undisputed facts adduced upon separate hearing before the court as to the admissibility of said alleged confession established that an attorney had requested to see defendant and was refused the opportunity to see and counsel defendant prior to the alleged confession having been obtained from defendant.'

The record reveals affirmative evidence in support of the grounds of error urged by the appellant. It also contains evidence which the state contends supports implied findings that the written statement was voluntarily made.

When the evidence was closed on the separate hearing on the involuntariness of the written statement in the absence of the jury, the court and counsel for both the appellant and the state had an extended discussion on whether the court should make any findings and conclusions on the primary determination of voluntariness.

In the discussions covering ten pages in the transcript at the close of the evidence, the court consistently stated in effect that he believed that the 'Rules' required him to hold the written statement inadmissible as a matter of law or that there was a disputed issue of fact to be resolved by the jury; that 'I can't tell who is telling the truth; it's not my province to do that; I only hold admissible or inadmissible as a question of law.'; that it was a disputed issue of fact whether he was deprived of counsel before making the written statement, and whether the statement was voluntarily made, and that such issues should be submitted to the jury (which he did in the court's main charge).

The appellant urged the court to make findings and conclusions on the voluntariness of the written statement, and whether the appellant was denied his right to counsel. He also requested the court to make such findings in accordance with the procedure suggested in the cases of Jackson v. Denno, Lopez and Harris, which were referred to and discussed.

At this time the court adjourned until the folllowing morning. When court reconvened, the judge inquired if there was anything further and appellant's counsel replied as follows:

'Mr. Barrington: * * * As I understand those cases we have been discussing, Lopez v. State, Harris v. State, and Jackson v. Denon (Denno), and that is this, that I request that the Court make a finding of fact as to each and every one of the issues that have been raised in this separate hearing pertaining to the volunteerness of the confession, and pertaining to whether or not the...