Webb v. State

ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Judge.

In view of appellant’s motion for rehearing a further statement of the facts is deemed necessary.

As stated in the original opinion, Jim Robinson (the deceased) was found dead in his pasture where he had been burning brush.

The area where the body was found had burned and the body was on fire. It was still burning in the abdominal area when the doctor arrived, but the face and head were burned very little and the doctor had no difficulty in recognizing the deceased by the light of a brush fire which was burning nearby.

The doctor testified that the body was badly burned in the portion from the neck to the lower part of the leg, for which reason his examination of the body was principally confined to the head.

The only injury to the head then observed was a small hole or opening at the hair line of the left temple. Post mortem examination proved this to be the point of entry of a bullet which was found in the brain.

It was the doctor’s opinion that the bullet wound or the burns which ever occurred first was the cause of death, and that the bullet wound was such as would cause instant death.

The physical facts mentioned called for an investigation to be conducted not only to determine who fired the shot into Jim Robinson’s brain, but also how and why his body was burned.

Upon the second trip to Austin and at the conclusion of the polygraph test, the sheriff came to the room where the test was *399made, as he understood it, in answer to the request of appellant. Others were in the adjoining room which was so equipped that they could see and hear what was transpiring or being said in the room where the sheriff and appellant were.

On cross-examination of the sheriff it was developed that during the conversation at this time, appellant told him everything that was in the written statement thereafter admitted in evidence “and possibly a little more.”

The sheriff testified on such cross-examination that he was “trying to get a confession out of him” and that he was “trying to see if he burned the body also,” and that he exhibited to appellant a picture of the “charred body of Jim Robinson,” which he described as “a mighty gruesome sight.” The picture was not produced and is not in the record.

The sheriff was asked and answered on said cross-examination: “Had you shown him the picture before you told him to tell the truth or after you told him to tell the truth? A. Just like I say, Hollie, I don’t recall whether he had already started making his statement or had already explained to me what happened on that afternoon, whether I showed him the picture or not, but I think it was after he had told me about the killing of Mr. Jim.”

The confession as made orally to the sheriff was made also to the county attorney after the statutory warning and was reduced to writing, and signed. Appellant admitted that he shot and killed Jim Robinson and robbed him of his pocketbook containing $30, but at no time did he admit that he burned the body. The burning is unexplained except as may be inferred from the fact that the deceased was engaged in burning brush and the area where the body was found was burned over. It was for this reason that the burning was not discussed in our original opinion.

Appellant urges that in exhibiting the picture to appellant the sheriff violated Art. 1157 of the Penal Code, and thereby obtained the confession reduced to writing and also the oral confession which led to the finding of the pocketbook taken from the person of the deceased.

The court, in his charge, instructed the jury that the statement in writing, allegedly made by appellant, was not to be considered for any purpose unless it was freely made without *400compulsion or persuasion and after the warning therein set out had been given, and that if made as a result of threats or violence used toward appellant, or by compulsion or persuasion, it was not to be considered.

The objections and exceptions to the court’s charge contain no complaint as to such instruction, or of the omission of further instructions, and no additional charge was requested.

The record shows no bill of exception, formal or informal, setting forth that either confession was admitted over the objection that the same was obtained or induced by the act of the sheriff in exhibiting the picture of the body of the deceased.

The oral confession made after the defendant had been returned to Gilmer and which led to the recovery of the pocketbook taken from Jim Robinson in the robbery was admitted before there was any evidence relating to the showing of the picture by the sheriff.

When the written confession was offered counsel for the appellant stated that they wanted to file a motion to suppress it “and we will let the testimony heretofore that we have introduced go to our motion for the court to consider in either sustaining or overruling it but we would like to get it in the record at this time.”

“The Court: Overrule the motion.”

There appears in the transcript a motion to suppress all confessions.

Not only is such procedure foreign to this state, but there is nothing in the record to show that this motion was presented to the court and ruled on by him.

If we may assume that this was the ground upon which appellant relied to have the confession excluded, then such issue as was raised was submitted to the jury with instructions to disregard the confession signed by appellant unless it was freely made, without compulsion or persuasion and not as a result of threats or violence.

It is also significant to note that after verdict motion for new trial was filed containing several grounds upon which the court was asked to set aside the verdict, none of which directly *401or indirectly attacked the admissibility of either of the confessions admitted in evidence.

As has been stated, the evidence shows no “long gruelling questioning of appellant” and the contention that the confessions were inadmissible under the undisputed facts rested alone upon the fact that after the polygraph test had been completed the sheriff entered the room, and while endeavoring to obtain a confession and to determine whether appellant burned the body after killing and robbing the deceased, showed appellant a picture of the charred body which the sheriff testified was “a mighty gruesome sight.”

What effect the picture had upon appellant is not disclosed in the record. We know that he thereafter, and the sheriff thought he had also previously, confessed that he killed and robbed Jim Robinson, and that he led the officers to the missing pocketbook. Also we know that he did not confess to or implicate himself in the burning of the body, and did not testify at the trial.

It is here contended that the confessions so admitted were inadmissible as a matter of law and we are asked to reverse and order a new trial because of their admission, and this despite the fact that no such ground for new trial was presented to the trial court, and no sufficient objection specifying such ground appears in the record, unless it be the motion to suppress above mentioned.

We cannot subscribe to the view that the undisputed evidence shows that the sheriff, in exhibiting the picture to appellant, tortured, tormented or punished his prisoner by inflicting upon him mental pain and that he did so for the purpose of making or attempting to make appellant confess to a knowledge of the commission of an offense, in violation of Art. 1157, V.A.P.C. At most, the evidence but raised such issue, and we are not prepared to say that it is sufficient to support a finding that the sheriff violated said statute.

Nor can we agree that the undisputed evidence shows that as a matter of law the confessions were rendered inadmissible because they resulted from the conduct of the sheriff in exhibiting the picture to appellant, and were therefore involuntary.

That the conduct of the sheriff induced or caused appellant to confess is not shown by undisputed evidence. Neither is it *402shown that any influence or affect on appellant’s mind which may have been caused from seeing the picture continued to the time the oral confession was made which led to the finding of the missing pocketbook.

In Colley v. State, 143 Tex. Cr. R. 390, 158 S.W. 2d 1014, it was held that where the officer violated Art. 1157 P.C. “if as a result of such violation of the law said person does confess, proof thereof becomes inadmissible * * * even though in connection with such confession the person should make statements found to be true, and which conduce to establish his guilt.”

Whether the confessions and each of them resulted from the sheriff showing appellant the picture was a fact issue. If it did so result the confessions could not have been freely made without compulsion. This issue was properly submitted to the jury in the court’s charge.

We remain convinced that the recent cases cited in our original opinion, in which certiorari has been denied by the Supreme Court of the United States, correctly hold that the use of the so-called lie detector test as a means of interrogation, such as here shown, does not render the confession thereafter made involuntary and that the undisputed facts before us do not condemn the confessions as a matter of law.

An examination of such cases, as well as those cited therein, will make apparent the fact that this court has consistently given application to the rule of the Supreme Court of the United States in cases involving alleged involuntary confessions.

The confessions and the evidence independent of the confessions clearly prove that appellant killed and robbed the deceased. His plea of insanity has been twice rejected by a jury, and in both trials the extreme punishment was assessed

We find no error in the record which would justify a reversal of the conviction and appellant appears to have been accorded all of his legal rights.