Walker v. State

• Citation: 286 S.W.2d 144,162 Tex.Crim. 408,76 S.Ct. 299
• Decision Date: 09 February 1955
• Docket Number: No. 27390,27390
• Parties: Tommy Lee WALKER, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 144

286 S.W.2d 144

162 Tex.Crim. 408

Tommy Lee WALKER, Appellant, v. The STATE of Texas, Appellee.

No. 27390.

Court of Criminal Appeals of Texas.

Feb. 9, 1955.

Rehearing Denied June 1, 1955.

Writ of Certiorari Denied Jan. 9, 1956.

See 76 S.Ct. 299.

W. J. Durham and J. L. Turner, Jr., Dallas, for appellant.

Henry Wade, Criminal Dist. Atty., James K. Allen, Asst. Crim. Dist. Atty., George P. Blackburn, Asst. Crim. Dist. Atty., Dallas, Leon Douglas, State's Atty., Austin, for the State.

MORRISON, Presiding Judge.

The offense is murder; the punishment, death.

Mrs. Parker was mortally wounded some time between 8:55 and 9:10 on the night of September 30, 1953, in the vicinity of Love Field in the City of Dallas. The cause of death was a knife wound in her throat which severed her jugular vein. She also received other bruises to her face and body and had been raped. The only question is the identity of the appellant as her assailant. The appellant, a nineteen-year old member of the colored race, was arrested on January 29, 1954, and thereafter made two written confessions in which he admitted that he had seen a woman at a bus stop on Lemmon Avenue and had forced her at knife point to go down into the bed of the creek near the bridge, and that her throat had been cut while he was in the act of robbing her. He did not admit the rape. Appellant's defense was that of alibi, in which he was supported by the testimony of his witnesses and which defense the jury rejected. With this summary as a background, we shall give a more detailed statement of the facts.

Mrs. Parker's employer testified that she left work at 8:55 p. m. and walked toward the bus stop, which the evidence shows is in the vicinity of a bridge on Lemmon Avenue.

R. R. Ryan testified that he saw a young colored man who, in his opinion, was the appellant leaning against a post on Lemmon Avenue about one-half a block north of the bridge at approximately 8:55 p. m. on the night in question.

Mrs. Kluge testified that she saw the appellant walking south on Lemmon Avenue in the direction of the bridge at approximately 9:00 p. m. and that shortly thereafter she saw Mrs. Parker also proceeding in the same direction.

Both of these witnesses identified the appellant at a police line-up shortly after his arrest.

Mr. Clarkson testified that at approximately 9:10 p. m. he saw Mrs. Parker in the middle of Lemmon Avenue near the bridge; that he stopped his automobile, asked her what had happened, and she replied that she had been stabbed; that he put her in his automobile and proceeded to Love Field, where he summoned the police and an ambulance; that the trip required three or four minutes; and that the police arrived four or five minutes thereafter.

Officer Gallaher testified that, in response to a call, he went to Love Field, where he saw Mrs. Parker at approximately 9:18 p. m. on the night in question; that she told him her name and address and said, 'A Negro took me under the bridge and cut my throat'; that shortly thereafter he sent her to the hospital in an ambulance, but that she was dead on arrival.

Captain Fritz testified that he arrived at the scene of the homicide shortly after its discovery; that he found a woman's panties, together with eye glasses and a purse, which were shown to have been the property of Mrs. Parker, under the bridge. He testified further that the appellant was arrested on the night of January 29; that he talked to him two or three times for short intervals; that on January 30 he signed a written confession in which he admitted that Mrs. Parker had been cut in the throat while he was in the act of robbing her; and that thereafter the appellant was transferred from the city to the county jail.

Millard Sweatt, investigator for the district attorney's office, testified that on February 6 he and Henry Wade, the District Attorney, interrogated the appellant and that the appellant signed a written confession which, though in slightly different phraseology, was practically identical to that given to Captain Fritz.

The facts will be more fully discussed in connection with the contentions raised by appellant's two able attorneys in their brief and oral argument.

Appellant moved to quash the indictment on the grounds of racial discrimination in the selection of the jury commissioners who selected the grand jury which indicted him and in the selection of the grand jury itself.

As to the jury commissioners, the proof is very similar to that which was before this Court recently in Morris v. State, 251 S.W.2d 731, writ of certiorari denied 345 U.S. 951, 73 S.Ct. 863, 97 L.Ed. 1374, and Addison v. State, Tex.Cr.App., 271 S.W.2d 947, 949. What we said in those cases, we think, disposes of appellant's first contention.

As to the grand jury, we must examine the record further. As in the Addison case, there was no showing of express or intentional discrimination in the selection of the grand juries in Dallas County. Clarence Jackson, a Negro, was a member of the grand jury which returned the instant indictment. It was shown that a Negro had been on each of the grand juries impaneled in Dallas County for the last ten years except three, and that two grand juries had had two Negroes serving on them during that period. There was no showing as to the racial composition of the grand jury panels of sixteen names from which a grand jury of twelve was chosen, except that on one occasion three Negroes had been on the panel.

Appellant offered the testimony of two of the jury commissioners who selected the grand jury which returned the instant indictment. Commissioner Hansen testified that he recommended Clarence Jackson because he knew him personally, knew that he was a deacon of the church and a very worthy and trusted employee of the Federal Reserve Bank; that he mentioned to his fellow commissioners that Mr. Jackson was a member of the colored race; and that he found out later that he was the only member of that race selected by him and his fellow commissioners but that he did not know the racial background of some of the other grand jurors at the time of their selection.

Commissioner Spencer testified that he was told by a fellow commissioner that Clarence Jackson was a member of the colored race and that his five selections for the grand jury were intimate acquaintances of his whom he knew to be so situated in business that they might spare three months to serve.

C. F. Starks, a member of the colored race, testified that he had served on the grand jury about ten years ago and that frequently since that time the Dallas County jury commissioners had called upon him for advice in the selection of members of the colored race for grand jury service. Appellant contends that the aid which the commissioners got from Mr. Starks was unofficial and illegal. It would seem to us, rather, that the commissioners were attempting to comply with the mandate of the Supreme Court of the United States in Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 637, 94 L.Ed. 839, wherein the Court said:

'Their responsibility was to learn whether there were persons among the Negroes they did not know who were qualified and available for service.'

Appellant's second motion to quash the indictment is predicated upon the contention that the jury commissioners failed to sign their names across the flap of the manila envelope containing the grand jury list before they delivered it to the judge in open court. From the testimony of the two jury commissioners who testified at the hearing on the motion, it is apparent that when first questioned one of them forgot having written his name across the back of the envelope but was called back the following day and testified that he had done so.

Bill of exception No. 3 is directed to the testimony of Henry Wade, District Attorney, in which mention is made of a lie detector test having been given the appellant. It is unnecessary to discuss the details of how this evidence got before the jury during the course of Mr. Wade's testimony because the same testimony was admitted, without objection, while the appellant was testifying in his own behalf.

Bill of exception No. 4 complains of argument of the prosecutor in which he stated the deceased was at the time of her demise making a living for a 4-year old boy and for her husband who was a tubercular in a hospital. Appellant's complaint is that this argument was outside the record. We shall examine this contention. Mrs. Parker's employer testified that she was regularly employed by him in the toy department and that her hours were from 12:00 noon until 9:00 p. m. Mrs. Parker's mother testified that since the death of her daughter she had been keeping her son, who was five years old at the time of the trial, and that Mr. Parker was in the T. B. Hospital. We agree with the trial court that the argument was a reasonable deduction from the evidence.

Bill of exception No. 5 complains that appellant's trial was halted so that the court might sentence one Klinedinst to death. The court's qualification of the bill and the evidence adduced in support of the bill shows that no prospective juror was in the courtroom at the time Klinedinst was sentenced. There is no showing that any member of the panel who may have been in the corridor at the time Klinedinst was escorted to and from the courtroom knew who he was or the reason for his visit to court, nor did the appellant question them about the incident. The bill does not reflect error.

Bill of exception No. 6 complains of the testimony of Officer Gallaher set forth earlier in this opinion. The statement was clearly res gestae. Appellant's contention that it was incumbent upon the State to prove that Mrs. Parker was competent and in full possession of her faculties at the time she made the statement is inconsistent with a long line of decisions of this Court which hold that a res gestae statement is admissible even though the person who...