Vanderbilt v. State

Decision Date22 March 1978
Docket NumberNo. 56834,56834
Citation563 S.W.2d 590
PartiesJim VANDERBILT, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals
OPINION

ODOM, Judge.

This is an appeal from a conviction for capital murder. The jury returned affirmative findings on each issue submitted under Article 37.071(b), V.A.C.C.P., and accordingly, the punishment was assessed at death.

The evidence reflects that the deceased, Katina Moyer, was abducted by the appellant, a former Amarillo police officer, at gunpoint from an Amarillo high school at about 3:15 p. m. on April 1, 1975. She was evidently handcuffed and was forcibly taken to appellant's house and subsequently was taken outside the city limits but within Potter County where appellant shot her in the back of the head. In view of our disposition of this appeal, further discussion of the facts will be limited to the events surrounding the interrogation of the appellant at police headquarters after he was taken into custody.

Appellant complains of the exclusion of evidence from the jury concerning an alleged deal used to induce him to confess. In brief, the record shows an oral confession on the evening of April 11, 1975, and a written confession in the early morning hours of April 12. The oral confession was ruled admissible and the written confession was excluded. We will first outline the evidence heard by the court on appellant's motion to suppress the oral confession, next note the trial court's ruling on the written confession as related to the oral confession, then detail the rulings on the evidence for the jury on the oral confession issue, and finally discuss the law on the matter and dispose of the issue.

Evidence to the Court on the Oral Confession

Appellant filed a motion to suppress an oral confession that was obtained from him during the interrogation. During a Jackson v. Denno, 387 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) hearing conducted outside the presence of the jury, the following evidence was adduced. Officer Ed Foree testified that appellant was arrested when leaving a class at the police academy at about 6:00 p. m. on April 11, 1975. He was taken to the polygraph room at police headquarters and was read his Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 674 (1966) rights. Officer E. N. Smith took custody of appellant immediately thereafter and testified that he stayed with him from 6:00 p. m. until 9:00 p. m. and that appellant did not request counsel until 8:00 p. m. at which time he was allowed to contact an attorney of his choice. The attorney contacted by appellant declined to represent him but did advise him of the nature of the charges about which he was being interrogated and further advised him to say nothing to the police. Smith further testified that as far as he knew appellant did not during this period of time attempt to call another attorney and never requested that one be appointed for him.

Officer Jimmy Boydston testified that he took custody of the appellant between 9:00 to 9:30 p. m., and immediately thereafter the appellant asked him some questions concerning the capital murder statute and the possibility of a deal being made to avoid the capital murder charge. Boydston testified that District Attorney Tom Curtis then came into the room and after Boydston had related to him what the appellant had been talking about, a deal was discussed. The terms were that if a signed written statement was given and was used in trial, then the State would not ask for the death penalty. Evidently at this point, the appellant was asked again by Curtis if he wanted an attorney, to which he replied that he did not but that he would like to see his wife. Once again, at this juncture, appellant was read his Miranda rights.

Boydston further testified that approximately thirty minutes later the appellant's wife arrived and talked with him for ten to fifteen minutes, and that after she had left the room Curtis handed the appellant a blank statement form and told him "that he could write it out as well as he could," referring to a written statement. At this point, according to Boydston's testimony, the appellant stated that he was not going to make a statement. To this, Curtis retorted that any deals or possible deals that had been considered were off and he asked if the appellant understood this to which he replied that he did.

The evidence reflects that Curtis then left the room and Officer Davis came in and made a statement to the effect that maybe a hundred policemen were working on this case and that they knew who did it and the only question remaining was why he had done it, referring to the appellant. Davis and Boydston testified that appellant then began to confess. After listening for a few minutes, Davis left the room and returned fifteen or so minutes later with a typed statement which the appellant refused to sign. At this point, the appellant did request the presence of counsel and asked that one be appointed for him. Curtis was immediately apprised of the appellant's request and a few moments later came back into the room with Tabor Scott, a practicing attorney who had been appointed by Justice of the Peace Byrd to represent the appellant. Scott had arrived at the station house at about 9:30 to 9:45 p. m. and was allowed to see the appellant between 11:00 and 12:00 p. m.

Scott testified that he saw the appellant at about midnight, conferred with him for an hour, left on several occasions to meet with District Attorney Curtis, and that later in the evening had a meeting with Curtis, which Justice of the Peace Byrd, Officer Fields and a few other individuals attended. Although Scott declined to testify as to the subject of the conversation with Curtis, apparently believing that the attorney-client privilege would prevent him from doing so, a transcription of the conversation occurring at 2:35 a. m. on April 12, 1975, was introduced at pre-trial, including the agreement entered into by Curtis and Scott on behalf of the State and the appellant respectively, as well as the written signed confession with an agreement. These exhibits establish that a written confession was signed by the appellant at 3:00 a. m. on April 12, 1975 in which he confessed to the murder of the deceased. At the end of the written confession is contained the language:

"that by confessing in writing and signing this written, voluntary confession to the murder I will not be in jeopardy of receiving a death penalty as punishment, upon my conviction for capitol (sic) murder, but will instead be punished only by life imprisonment for that offense."

The instrument states that it was executed at 3:00 a. m. on April 12, 1975. The transcription of the conversation between Scott and Curtis occurring at 2:35 a. m. on April 12, 1975, established that unless a signed written confession was produced in the capital case then the agreement was to have no effect.

The appellant took the stand at the Jackson v. Denno hearing and refuted most of the State's testimony. He testified that after the Miranda rights were read to him, at about 6:30 p. m. on April 11, 1975, he began asking for an attorney, and that he requested one approximately every ten minutes. He stated that, although there was no verbal response to his repeated requests, he was not in a position to get up and go to the phone. He testified that no one offered to let him go to a phone or offered to call an attorney for him until about 8:00 p. m. He stated that after he was shown a picture of the deceased he informed E. N. Smith that he did not want to talk to him about the case and again requested an attorney.

The appellant also testified that Davis made him a deal that if he would confess to the Moyer murder then Davis would take care of his wife, Davis evidently being in charge or having access to certain money in the police metro fund. The appellant stated that when he began confessing the deal with Curtis was still on, that it had not been withdrawn, and that the substance of the deal was that if he would confess to the crime then the death penalty would not be sought. The appellant testified that when Curtis wanted him to give the statement and when he refused Curtis became very angry and told him that the same deal would not exist tomorrow if the deal was not made then. Appellant stated that the oral confession was given to Officers Davis and Boydston because of the deals concerning the death penalty and the taking care of his wife. When Davis left the room to type up what the appellant had told him, and subsequently returned with a typewritten statement, appellant testified that the instrument was not complete, that it did not accurately depict what he had said, and thus he refused to sign the instrument. 1

Officer Davis testified that, although he did tell appellant that he would do what he could to shield his wife from the press, that this offer was not made contingent on appellant giving a confession, but was rather made because they had been police officers together and "that there is a certain bond between police officers. . . ."

The Jackson v. Denno hearing testimony was extensive, and other witnesses testified relative to issues not necessarily germane to the present inquiry and thus their testimony will not be discussed. Based on the testimony presented at the hearing, the trial court ruled that the oral confession made by the appellant to Boydston and Davis was admissible and denied the motion to suppress.

The Written Confession and the Oral Confession

At a pre-trial hearing, the trial court ruled that the written confession signed by the appellant at 3:00 a. m. on the morning of April 12 would not be admissible in the trial on the merits in the event the State sought to...

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6 cases
  • Crawford v. State
    • United States
    • Texas Court of Criminal Appeals
    • 16 Julio 1980
    ...or writing which is necessary to make it fully understood or to explain the same may also be given in evidence." In Vanderbilt v. State, 563 S.W.2d 590 (Tex.Cr.App.1978), we observed that Article 38.24 does not restrict the explanatory act, declaration, conversation, or writing to the time ......
  • Vanderbilt v. State
    • United States
    • Texas Court of Criminal Appeals
    • 23 Septiembre 1981
    ...mandate from this Court reversing appellant's prior conviction for the instant offense was issued on April 19, 1978. See Vanderbilt v. State, Tex.Cr.App., 563 S.W.2d 590. Appellant was still in custody on July 1, 1978 when the Speedy Trial Act became effective. Disposition of this ground of......
  • State v. Vanderbilt
    • United States
    • Texas Court of Appeals
    • 26 Agosto 1998
    ...of the evidence to support the jury's finding of future dangerousness at the punishment phase of the trial. Vanderbilt v. State, 563 S.W.2d 590, 599, n. 4 (Tex.Crim.App.1978). The protection of the Double Jeopardy clause applies only if there has been some event, such as an acquittal, that ......
  • Brasfield v. State
    • United States
    • Texas Court of Criminal Appeals
    • 13 Febrero 1980
    ...where Johnny's body was secreted. See and compare Earvin v. State, 582 S.W.2d 794, 799 (Tex.Cr.App.1979). In Vanderbilt v. State, 563 S.W.2d 590, 599, fn. 4 (Tex.Cr.App.1978), the Court gratuitously called attention of the trial court to the holding in Warren, supra. Other cases by this Cou......
  • Request a trial to view additional results

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