Washington v. State

• Decision Date: 06 January 1965
• Docket Number: No. 37361,37361
• Citation: 388 S.W.2d 200
• Parties: Webb WASHINGTON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 200

388 S.W.2d 200

Webb WASHINGTON, Appellant, v. The STATE of Texas, Appellee.

No. 37361.

Court of Criminal Appeals of Texas.

Jan. 6, 1965.

On Rehearing March 24, 1965.

Rehearing Denied April 28, 1965.

James H. Martin, Jerry Chamberlain, Michael E. Schwille, Phil Burleson (on appeal only), Dallas, for appellant.

Henry Wade, Dist. Atty., A. D. Jim Bowie, William F. Alexander, Edwin Davis and C. M. Turlington, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The conviction is for murder; and the punishment was assessed at death.

The evidence of the state reveals that the appellant, an employee of the deceased who was a woman, committed a cruel and brutal murder by beating her with a hammer and choking her.

A written statement, made and signed by the appellant, and introduced in evidence by the state shows a violent killing of the deceased by the appellant without justification. The physician who performed the autopsy testified that the death of the deceased was caused by strangulation and head injuries.

Dr. Holbrook, a psychiatrist, testified that he examined the appellant, and based upon his examination he expressed the opinion that he knew the difference between right and wrong, and understood the nature and consequences of his acts.

The appellant did not testify, but called his brother and two other lay witnesses who related a spree by the appellant of drinking beer and whiskey all during the night before the killing and also of being drunk.

Appellant called one other witness, a psychiatrist, who testified that he had seen the appellant three different times since the killing and that in his opinion he was not mentally bright, that his level of intelligence was in the lower four per cent of the population, and that he answered questions on intelligence tests at about the second and third grade level. On cross-examination he expressed the opinion that appellant knew the difference between right and wrong, and understood the nature and consequences of his acts.

The appellant insists that the trial court erred in admitting in evidence certain items and objects removed by the officers from his home on the ground that they were obtained under an illegal search warrant.

During the examination of Officer Sims, a state's witness, by appellant's attorney the record reveals the following:

'Q. Mr. Sims, after you arrested this man here, he carried you, went with you and showed you where his home was, didn't he?

'A. Yes sir.

'Q. Prior to that time you didn't know where it was, did you?

'A. I don't recall whether I did or not.

'Q. And, anyway, he went with you?

'A. Yes sir.

'Q. To his house. And gave you permission to go in and search the house, did he not?

'A. Yes, sir.

'APPELLANT'S ATTORNEY: Well, Your Honor, a search warrant would be unnecessary, and its just a matter of show and glamour. And we object to it. They didn't need the search warrant, they had permission of the defendant to search the premises, the search warrant is unnecessary.

'THE COURT: All right.'

It is evident, that it is not necessary to consider the validity of the search warrant in view of the testimony of Officer Sims and the statement of appellant's counsel.

Appellant contends that the trial court erred in admitting in evidence before the jury the written statement of the appellant without first having a hearing before the court on the issue of its voluntary nature; and also erred in failing to charge the jury on the issue of the voluntary nature of the written statement.

The testimony of Officer Dhority reveals that he told the appellant that he did not have to make any statement at all, that any statement he made could be used in evidence against him, and that the appellant then made to him a voluntary statement in writing which he signed. The statement was offered in evidence by the state.

At this time appellant's attorney stated:

'APPELLANT'S ATTORNEY: Your Honor, I would like to ask Mr. Dhority a couple of questions on voir dire.

'APPELLANT'S ATTORNEY: I believe, Mr. Dhority, you testified that the statement which is now being offered into evidence was taken on October 17, 1963, is that correct?

'A. Yes sir, it was.

'Q. Now, the Defendant was arrested on October 15, 1963, was he not?

'A. Yes sir.

'Q. And he was placed in the Dallas City jail on October 15, 1963.

'A. Yes sir.

'Q. Now, he had not been released from jail between October 15 and October 17, the time that the statement was made, was he?

'A. No sir.

'Q. And during that time he did not have any visitors and was not permitted visitors, was he?

'A. I don't know. I was off two days.

'Q. You didn't permit any visitors to visit him, did you?

'A. No sir.

'Q. He was not released from jail on any writ or court order, was he?

'A. No sir.

'APPELLANT'S ATTORNEY: All right, thank you.

'APPELLANT'S ATTORNEY: Your Honor, the Defendant will object to the admittance of the statement made by Mr. Dhority, for the reason that it is not a voluntary statement. By the testimony' of the witnesses who testified in the case. The Defendant was incarcerated for approximately two days before any statement was made. We feel that this continual incarceration itself was an inducement, or effected a threat to the Defendant to give the statement. And for that reason we object to it, on the grounds that it violates the Fifth Amendment of the United States Constitution, that a person may not be called on to testify against himself; further that it violates the Fourteen--Amendment, in that it was not taken according to the due process of law. That this Defendant remained in the jail for a period of over fifty hours before his voluntary so-called confession was taken, and we object to it on the grounds that it was involuntary.

'THE COURT: The Court overrules your objection, and admits the statement in evidence.

'APPELLANT'S ATTORNEY: Note our exception.'

The above quoted testimony adduced by appellant's counsel reflects that he was not restricted in developing any evidence relating to the taking of his written statement, or that appellant was denied any request at this time.

The appellant did not testify.

The fact that the appellant was arrested on October 15, 1963, and placed in jail where he remained until October 17 when he made a written statement to Officer Dhority, does not, standing alone, raise any issue as to the voluntary nature of his written statement. Therefore the failure to have a hearing before the court on the issue of the voluntariness of the written statement, and the failure of the court to charge the jury on the issue of the voluntary nature of the statement was not error. Humphries v. State, 163 Tex.Cr.R. 601, 295 S.W.2d 218.

The evidence is sufficient to support the conviction and no error appearing, the judgment is affirmed.

Opinion approved by the Court.

ON APPELLANT'S MOTION FOR REHEARING

WOODLEY, Judge.

Appellant re-urges his contention that the court erred in allowing the introduction in evidence of items recovered in an illegal search of his home (Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Aguillar v. State, Tex.Cr.App. 382 S.W.2d 480; Etchieson v. State, Tex.Cr.App., 382 S.W.2d 478; Mayfield v. State, Tex.Cr.App., 382 S.W.2d 940); his claim that the trial court erred in admitting appellant's confession without first having a hearing on the issue of voluntariness (Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908); his contention that the trial court erred in failing to withdraw the confession after all of the evidence had been introduced and his contention that the court erred in refusing to submit to the jury the issue as to the voluntariness of the confession (Lopez v. State, Tex.Cr.App., 384 S.W.2d 345).

Appellant points to the following as the total circumstances...