Wayne Henley called his mother at 6:30 in the evening on August 8, 1973, a few hours after he shot Dean Corll dead in a house in Pasadena, Texas, and asked her to get him a lawyer. Mary Henley called the family's lawyer, Samuel Plotkin, who had represented her before, and he began trying to find out where the boy was being held and when anyone could see him. By the time Plotkin got through to anyone who knew, late at night, Henley was far to the northeast at Lake Sam Rayburn with detectives, showing them where bodies were buried. The sheriff of San Augustine County told Plotkin the boy was probably asleep, that it was a small town where people went to bed early, and to call back at 7:30 in the morning.
That is what this part of the trial was about. By the time it reached the pages below, in a San Antonio courtroom in the summer of 1974, the jury had already heard the State's case: the police officers who took Henley's statements, David Owen Brooks, and the officers who recovered the bodies. The defense, whose lawyer the reporter records simply as Mr. Gray, was trying to show that the statements should never have been taken the way they were, from a juvenile whose mother had asked that he not be questioned until a lawyer arrived. Three witnesses are here: Mary Henley, Plotkin, and John Hoyt, the San Augustine sheriff.
The State's two-part brief on the appeal is the other half of the argument. It answers Henley's complaints point by point, and two of them run all the way through it: the publicity that surrounded the case, which the State says the trial judge handled properly by moving the trial and holding back some hearings, and what Detective Sergeant Mullican and other officers said at trial about oral statements Henley made that were not in the written ones. The Court of Criminal Appeals reversed the conviction in 1978. Henley was tried again in Corpus Christi in 1979, convicted again, and is serving six consecutive 99-year terms.
This is a fragment, and a small one. The transcript ran to at least 4,459 pages; what survives here is about 145 of them, printed pages 3966 to roughly 4110, from the opening of the defense case. The scan's own cover calls it Volume I while the continuation slip inside says Volume XX, and both are recorded rather than one being picked. Henley does not testify anywhere in these pages. His own account is the written statement he gave the Houston police on August 8 and 9, which is a different document and not part of this one.
Nothing in the brief is a finding. It is the prosecution's written argument, filed to keep a conviction the defense was trying to overturn, and it describes the evidence the way the State needed it described. Where it quotes the trial record, the page citations it gives are to the full transcript, most of which is not held. The reversal in 1978 means that at least one court read the same record and was not persuaded.
Records of a Texas state court, public, nothing to clear. The scans were uploaded to the Internet Archive by a private researcher, so they are a copy rather than the original; the District Clerk of Harris County holds the record under Cause No. 198,892 and certified copies come from that office. The remaining four thousand pages of transcript are there too, if anyone wants to go after them.
Every page of the transcript carries a watermark running down its right edge, and the scanner read it as a column of broken characters woven into the testimony, bits like "....g" and ":cu z..," beside Mrs. Henley's answers. That column has been cut out, along with the court reporter's line numbers. The harder problem was the reporter's Q. On many pages it came through as a zero, a G, a lowercase e or a numeral, and on some pages the A was dropped altogether, so that whole runs of questions and answers read as one speaker. We put the labels back from where they sit on the page and, where no mark survived at all, from the plain alternation of question and answer. A few exchanges still run together where there was nothing to go on. We repaired 93 misread words where only one real word fits and then checked the repairs back against the scan, which undid 24 of them. The spelling repairer had turned ma'am into madam throughout, in the transcript and in the brief's quotations from it, and every one has been put back, which gives an idea of why the check matters. Tables of the news stories the defense filed as exhibits are left out of the brief, and the tables of contents are gone from both parts.
MR. GRAY: May we proceed,
Q. Your Honor?
Q. THE COURT: Please.
MARY PAULINE HENLEY, the witness, called to testify by the Defense, having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. GRAY:
Q. Tell us your name, please, ma'am.
A. Mary Pauline Henley. Would you speak up so the Judge can hear you? and so we can hear you?
A. It's Mary Pauline Henley. All right. Where do you live, Mrs.
Q. Henley?
A. 325 West 27th.
Q. Pull that microphone around just a little.
A. This way? 325 West 27th.
Q. That's here in Houston?
A. Yes, sir.
Q. Are you married, Mrs. Henley?
A. No, sir.
Q. Divorced?
A. Yes, sir.
Q. Do you have any children?
A. I have four boys.
Q. What are their names, please, ma'am?
A. Vernon, Ronald, Paul and Wayne.
Q. Now, when you say Wayne, are you speaking of Elmer Wayne Henley, Jr., the Defendant in this case?
A. Yes, sir. How old is Elmer Wayne Henley at this time,
A. Seventeen.
Q. What's his birth date?
A. May 9th.
Q. What year?
A. '56.
Q. How old was he back in August of 1973?
A. Seventeen.
Q. Was he living at home with you at that time?
A. Yes, sir.
Q. Along with the other children?
A. Yes, sir.
Q. In the divorce that you obtained from Mr. Henley, were you awarded custody of these
A. Yes, sir.
Q. four boys? And you have had their custody since that time?
A. Yes, sir.
Q. Let me ask you this, Mrs. Henley: Did you have an occasion to hear from or about Elmer Wayne Henley back on August the 8th of 1973?
A. At 6:30 p.m., he called me.
Q. 6:30 p.m.?
A. Yes, sir.
Q. That was on August the 8th?
A. Yes, sir.
Q. How did he call you, by telephone?
A. Yes, sir, on Channel 2 News radio phone.
Q. On what phone?
A. Big 2 News.
Q. Big 2 News, what's that?
A. That's a news car that was on the scene. They let him use their phone to call me.
Q. Did he tell you he was calling from a Big 2 News phone?
A. No, sir. I didn't know where he was calling from at first.
Q. Did you have a conversation with him at that time?
A. Sort of.
Q. Did you later see this filmed episode on the television?
A. Yes, sir, five minutes after I hung up the phone.
Q. Was your conversation with Elmer Wayne Henley reproduced on television?
A. Most of it.
Q. Did you have any conversation with your son at that time about getting him a lawyer or coming to see him on anything like that?
A. I asked him could I come and see him. And he said the police would call me when I could come.
Q. The police would call when you could come see him?
A. Yes, sir.
Q. Excuse me. What did you do after you completed this conversation with your son?
A. I just went all to pieces.
Q. Did you make- any effort to go see him yourself?
A. I called my family lawyer. And he started trying to get me in to see him, find out where he was and when I could see him.
Q. Now, who is your family lawyer?
A. Samuel Plotkin.
Q. Samuel Plotkin?
A. Yes, sir.
Q. Had he represented you before?
A. Yes, sir.
Q. How did you contact Mr. Plotkin? Did you telephone him or go by his office or what?
A. I don't know if I telephoned him or he telephoned me. The phone rang incessantly after that television show, and I don't remember who called who.
Q. Did you have a conversation with Mr. Plotkin in reference to your son?
A. Yes, sir.
Q. Did your son in this conversation over the television tell you where he was in jail, if he was?
A. He told me where he was at.
Q. Where was he at?
A. He was at the boat shed.
Q. The boat shed. And did he tell you that he was under arrest or the police were detailing him or something?
A. Yes, sir.
Q. What did he tell you in that line about that?
A. He just told me he was he said, "It's all right, mama. I am with the police."
Q. But that didn't satisfy you, did it? You wanted to; t some assistance other than the police; is that correct?
A. Well, yes, Sl. They had had him all ten hours and didn't even call me.
Q. After you had your conversation with Mr. Plotkinl, did you go anywhere to try to see your son?
A. No, sir. He said he'd find out and just as quick as I could go his wife would come and take me to him.
Q. Mr. Plotkin told you that?
A. Y s, sir.
Q. Did Mr. Plotkin come back or his wife come back and talk to you after this?
A. Not that night, but the next morning, his wife came and took me to Pasadena.
Q. What time was that?
A. About 10:00 o'clock Thursday morning.
Q. That was on August the 9th?
A. Yes, sir.
Q. About 10:00 in the morning?
A. Yes, sir.
Q. Where was Mr. Plotkin at that time?
A. He was in court.
Q. His wife took you somewhere, you say?
A. She took me to the police station in Pasadena. so I could see Wayne.
Q. Did you go to the police station there in Pasadena?
A. Yes, sir.
Q. Where did you go when you got out there?
A. We went into the front, and they gave me a pass and sent me around to the jail entrance, and I was with Wayne about five minutes.
Q. Did you have a conversation with him at that time?
A. Well, not much. He was incoherent. I just s.aw him and knew that he was pretty well off.
Q. Was he in a cell at that time or where was he?
A. But he was in a solid cell. It was just a solid box.
Q. What do you mean?
A. There was no bars or anything. The reason I remember is because he has clostrophobia and he was all to pieces, because he didn't have any way to see out.
Q. Well, did they have any windows in there?
MR. LAMBRIGHT: Your Honor, we are going to object to that and ask it be stricken from the record. calls for an opinion on the part of this witness as to what he has that she is not qualified to give.
THE COURT:
Q. (By Mr. Gray) Are there any windows in this cell?
A. There was one little window in the door.
Q. Did you talk to him through that little window?
A. No, sir. They took us in a booth, attorney's booth. ill
Q. All right. You had a five minute conversation with him about 10:00 a.m.?
A. Yes, sir.
Q. What did you talk to him about?
A. I just asked him if he was all right and what happened.
Q. Did you tell him that you had employed Mr. Plotkin or were trying to employ Mr. Plotkin to represent him?
A. Yes, sir. And he asked me to get Mr. Plotkin and a doctor to him.
Q. He said what?
A. Get Mr. Plotkin and a doctor to him as quick as I could.
Q. What did he want a doctor for?
A. Well, he was sick.
Q. Now, you say he went all to pieces or something like that. Would you describe his condition to us, ma'am?
A. He was hallucinating. He was seeing people who weren't there. Doors were being opened from the wrong side. He just talked completely incoherent. He couldn't he didn't know the QI time. He didn't know how long he had been there. ctl
Q. Did you tell him you'd try to get a lawyer and a doctor for him?
A. Yes, sir.
Q. Had he ever acted like this before?
A. Not like that, no, sir. I mean, he's nervous. I mean, he has always been a kind of nervous person, but he has never acted incoherent or seeing things.
Q. This is the first time that had occurred as long as you have known him?
A. Yes, sir.
Q. What kind of things was he seeing?
A. People opening the door of his cell from the. wrong side and standing there laughing at him. They wouldn't say anything. They just stood there and laughed at him and then closed the door and then somebody else would come.
Q. All right. Was anyone present when you had this conversation with him?
A. No, sir.
Q. Did you have any conversation with any police officers while you ~ere out there?
A. Yes, sir. Detective Mullican.
Q. B e Ma'am?
A. Detective Mullican.
Q. What was your conversation with Detective Mullican?
A. I told him that my lawyer was in court and couldn't possibly get there before 2:00 and he asked that Wayne not be questioned anymore. And I asked was it possible for Wayne to have a doctor, that he was not well at all and he needed a doctor to look at him.
Q. What did Mr. Mullican say?
A. He said Wayne didn't have to talk if he didn't want to, but they was going to question him anyway.
Q. Did you have one of Mr. Plotkin's cards with you at that time or not?
Q. Yes, sir. I tried to leave it for Wayne. said they would put it in his personal property, but they wouldn't let him have it.
Q. What other conversation did you have with Mr. Mullican about the legal assistance for your son?
A. I just told him that my lawyer would get there as quick as he could get out of court and that he wanted Wayne not questioned until he could? talk to him. Since Wayne was not rational he was afraid to he wanted to talk to him, see what shape he was in and get a doctor to him.
Q. Did you talk to any other officers out there?
A. No, sir.
Q. Did you later see Lawyer Plotkin that morning or any time that day?
A. Well, I talked to him that afternoon.
Q. What time?
A. Well, it was about 3:30 I guess.
Q. By telephone or person or By telephone.
Q. Did you go to his office any time that day?
A. No, sir. He came to me.
Q. Did you find out later either that day or some other day that Mr. Plotkin did not want to handle this case?
A. Yes, sir. He told me VANCE: Never mind.
A. (By the Witness) He told me that night that he didn't think it would be rood for his practice for his name to be associated with the case.
Q. (By Mr. Gray) What time did that occur?
A. In the afternoon after he came back to the house from the courthouse, from the jail.
Q. Was this after your conversation with him about 3:30?
A. Yes, sir. That was that niht. He had been to the police station and tried to et throug to Wayne and he tried again that night.
MR. LAMBRIGHT: Objection, Your Honor, hearsay.
THE COURT: Don't tell what he told you, ma'am. That would be hearsay. THE WITNESS: Oh, I'm sorry.
Q. (By Mr. Gray) If you will just answer my question, may we avoid this sort of thing; okay?
A. Okay.
Q. At any rate, you had a conversation with him that night then?
A. Yes, sir.
Q. This was st1ll on Aurust the 9th?
A. Yes, sir.
Q. After this conversation, did you or did you not make any efforts to obtain another lawyer or a lawyer to represent your son?
A. I got I asked my pastor to help me find a good criminal lawyer, because I didn't know anything about it.
Q. And that led you to Lawyer Pegelow then?
A. Yes, sir.
Q. What time did you when did you first contact Attorney Pegelow?
A. It was Friday morning.
Q. All right. That would have been August the
A. Yes, sir.
Q. Do you recall what time that was?
A. Not exactly. It was pretty early in the morning,
Q. Well, 8:00, 9:00?
A. Around 9:00 or 10:00 I think.
Q. Now, during the interval from the last time you talked to Mr. Plotkin and he told you that he couldn't or didn't want to handle the case and the time that you talked to Mr. Pegelow, did you make any other efforts to contact your son?
A. Yes, sir.
Q. What did you do?
A. Well, I called he called me from San Augustine County.
Q. When was that?
A. s A That was Thursday night.
Q. What time was that?
A. That was about 8:30 or 9:00.
Q. Did you have a conversation with him at that time?
A. He just told me he wanted me to know he was all right and he didn't have but a couple of minutes to talk. He just wanted me to know he was well. Did you discuss this situation of the lawyers with him at that time? fl. No, sir. He just told me to get a lawyer. left it up to me.
Q. Is that what he said during this phone conversation you are telling us about?
A. He just said, "Mama, get me a lawyer."
Q. All right. And then he said he was all right or something of this nature?
A. He said he was all right, not to worry about him.
Q. Anything else in that conversation?
A. He still was asking for a doctor. Other than that, that's all he had time to say.
Q. Still asking for a doctor?
A. Yes, sir. Did he say what was wrong with him? No, sir. He just kept begging for a doctor.
Q. All right. Now, back to your initial conversation with Mr. Pegelow. It was 9:00 or 10:00 o'clock in the morning on August the 10th; is that your testimony?
A. On August the 9th, wasn't it? Well, was it Thursday or Friday?
A. Thursday. du
Q. Now, I am talking about Mr. Pegelow, not Mr. Plotkin.
A. Oh, Mr. Pegelow. I'm sorry. Yes, that was Friday, August the 10th.
Q. All right. Did he come out to see you, or did you go to his office, or what?
A. They came out. I called them. They came out All right. And did you at that time employ Mr. Pegelow and Mr.
Q. Melder to represent your boy?
A. Yes, sir. I did.
Q. So, as I understand your testimony then, Mr. Plotkin was your lawyer, representing; you in this matter up until sometime the night of August the 9th?
A. Yes, sir. Now, he still tried to get in touch with Wayne in San Augustine County.
MR. VANCE: Your Honor, we'll object to what someone else may have tried to do. THE COURT: Sustained.
(By Mr. Gray) And then the next day, the next morning, Mr. Pegelow and Mr. Melder took over the case? Yes, sir. When you talked to your son out at Pasadena on the 8th, was Mrs. Plotkin present or was she waiting outside?
A. No, sir. She waited outside.
Q. All right. No one was present but you and your son when you had the conversation in the lawyer' booth?
A. That's right.
Q. Now, during this period that we are talking about from your conversation with your son at 6:30 p.m. on August the 8th until you employed Mr. Pegelow and Mr. Melder on August the 10th, what was your physical and mental condition as far as helping your son was concerned?
MR. VANCE: Your Honor, object to that. It's not proper.
THE COURT: a (By Mr. Gray) Did you have during this period we are talkin about, Mrs. Henley, any lare sum1 of noney that you could ~o down and see Mr. Foreman or some famous lawyer to try to get all some action for your son? lll
A. No, sir.
Q. Did you have any money at all?
A. No, sir.
Q. Did that have any effect on your efforts to obtain legal assistance for your son durin~ this period?
MR. VANCE: Your Honor, object to that.
THE COURT:
MR. GRAY: May we have our answer for our bill of exception, Your Honor? THE COURT: All right,
A. (By the Witness) Yes. I had trouble getting a lawyer who wanted to take a case that way. a (By Mr. Gray) All right. Did you have any conversation by telephone with your son after he called you from San Augustine on August the
A. Not after.
Q. Did you later see him and, if so, when?
A. Friday night. QI
Q. What time?
A. It was about 8:00 o'clock. ti
Q. Where was he?
A. He was in Pasadena.
Q. In the jail?
A. Yes, sir. QI
Q. This was about 9:00 you say?
A. Yes, sir.
Q. Did anyone go out there with you at that time?
A. My sister took me out.
Q. Did you see Wayne at that time?
A. Yes, sir.
Q. Did you have a conversation with him?
A. Yes, sir.
Q. All right. Was that in a lawyers booth again?
Q. Yes, sir.
Q. What was his physical and mental condition at that time, Mrs. Henley?
A. Well, he was shaking all over. He couldn't stop. And he'd talk for a minute and then he would go to crying and go to something else. He didn't have a span of concentration on one thing.
Q. Anything else that you noticed unusual about his condition?
A. fl. Well, just he was crying so hard and shaking. He had a bad cold. And he couldn't his nose was running. And he just was all to pieces.
Q. Has he in the past suffered from some sort of sinus problem?
A. No, sir, asthma.
Q. Asthma. Did you tell him at that time that you had gotten some lawyers to represent him?
A. Yes, sir.
Q. Did he tell you anything about how the police had been treating him during this period?
A. Well, outside of the fact that he was cold and didn't have enough clothes and things, he didn't say anything about his treatment.
Q. Well, of course, as I understand your testimony, you are not telling this Court that he appeared to have been beaten up or anything like this?
A. No, sir.
Q. We are talking about his, as I take it, his mental condition?
A. His mental and physical condition, yes, sir.
Q. All right. During this period we are talking about, Mrs. Henley, did anyone from the Harris County District Attorney's office contact you? or talk to you?
A. No, sir. Any other police officers that you had any QI conversation with other than Officer Mullican. from the Pasadena Police Department?
A. I just talked to one detective that day they?c..0a» took him to Sam Rayburn, but I don't know his name. It was here.
Q. Was that a Houston detective?
A. Yes, sir.
Q. Or Houston police?
A. It was at the Houston police station.
Q. You had a conversation with him?
A. Yes, sir.
Q. Where did this occur?
A. At the Houston police station.
Q. When was this?
A. That was Thursday afternoon about 2:30, August the 9th.
Q. That was on August the 9th?
A. fl. Yes, sir. What was the occasion for your going down and talking to some detective at the Houston Police Department?
A. Well, Wayne had called me from Pasadena and all told me that he had signed everything they wanted him to and now I could meet him at the lll Eouston police station with a doctor and a ill lawyer.
Q. Did he tell you what time you could meet him then?
A. ill
A. He told me they were leaving right then and for me to leave right then.
Q. And you did that?
A. Yes, sir. I called Mr. Plotkin's wife and then went straight to the police station.
Q. All right. Now, this was right after you had seen him out there at Pasadena?
A. It was about four and a half hours later.
Q. When he called you?
A. Yes, sir. Well, let's go back now.
Q. What time did he call you on August the 9th?
A. About 2:30.
Q. Where did you go when you got down to the Houston police station?
A. To the homicide division.
Q. This fellow you talked to, was he a lieutenant or just a plain old vanilla detective?
A. Sir, I don't know. Wayne was gone. And I ill they had already took him to Sam Rayburn. And I got real upset. And he just took me in his office to talk to me, to try to calm me down. lll
Q. Do you know whether or not his name was Breck Porter?
A. No, sir. It wasn't Mr. Porter.
Q. How did he go about calming you down?
A. He just told me there was nothing I could do about it, that Wayne was seventeen and if he was willing to ggO
MR. LAMBRIGHT: Your Honor, this is not relevant to any issues before this Court. We object to how he calmed her down.
THE COURT:
MR. GRAY: Well, Your Honor, we submit this is admissible on the issue, particularly under the totality of the circumstances on the police treatment of this woman when she is
Q. trying to obtain assistance for her son while he is incarcerated and being; held incommunicado by the police. we are offering it for that purpose only. QI
MR. LAMBRIGHT: If it please the Court, a statement by this lady QI ill is not in issue before this Court. QI It's this Defendant's statement in issue. And we would submit any condition of this woman or any officers QI trying to calm her down wouldn't be relevant to any issue in controversy.
THE COURT: Sustained.
MR. LAMBRIGHT: Thank you,
MR. GRAY: We object then, Your Honor, and may we have her answer for our bill of exception?
THE COURT: Yes, sir.
BILL OF EXCEPTIONS a (By Mr. Gray) Now, what did he do about calming you down, ma'am? What did he tell you?
A. He just told me I might as well calm down and accept it, Wayne was seventeen and I had no control over it, and they were already gone.
Q. Anything else he told you?
A. No, sir. He got me a glass of water and told me to sit there till I felt better and walked out.
Q. He left you there with your glass of water?
A. v,'i th my mot her.
MR. GRAY: All right. all we offer on the bill of exception, Your Honor. We again submit that this is admissible under the totality of the circumstances.
THE COURT: Objection be SUStained.
MR. GRAY: Note our exception.
THE COURT: All right, sir.
END OF BILL OF EXCEPTIONS
DIRECT EXAMINATION
(Continued)
BY MR. GRAY:
Q. Well, at any rate, when you met with this detective down at the Houston Police Department, is that the first time you learned or not that your son had gone to Sam Rayburn or somewhere?
A. Yes, sir.
Q. And then I believe you testified that he called you later that night?
A. From San Augustine County. All right.
Q. Did you have any conversation with any other law enforcement officers during this period?
A. No, sir, just Sergeant Ellis.
Q. Who is Sergeant Ellis?
A. At the Pasadena police station.
Q. When did you have a conversation with him?
A. Well, he was on duty anytime I went to visit Wayne.
Q. Was he on duty out there on August the 8th or August the 9th when you went out there?
A. No, sir. I went in the morning. He worked in the afternoon.
Q. All right. When is the first time you saw Sergeant Ellis then?
A. Friday night.
Q. Friday night?
A. Yes, sir.
Q. Did you go out there Friday night for some reason?
A. Well, that was the only time. That was the first time they had let me see him since Thursday morning. He had been gone, and they called and said I could or I called out there and asked them were they back and he said yes. And I said, "Well, can I see him? So they asked somebody there and said yes, I could come out.
Q. All right. What time did you go out there, did you say?
A. It was about 8:30 or 9:00.
Q. P.M.?
A. Yes, sir.
Q. How long did you visit with your son then?
A. I think I stayed about a half an hour that night or maybe a little longer.
Q. Now, this was already after you had contacted Mr. Pegelow and Mr. Melder and employed them to represent your son? Yes, sir. Did you tell Wayne at that time that they were representing you?
A. Yes, sir. Do you know whether or not they had had an opportunity to visit him before this conversation?
A. Mr. Pegelow had gone out there.
Q. Do you know when he went out, of your own personal knowledge?
A. Well, just before I did. Was he out there when you were there? QI
A. Well, he was leaving or he was in the office upstairs. I knew he was there, but I didn't see him.
Q. From your conversation with Wayne, could you determine whether or not he had had an opportunity to talk to Mr. Pegelow?
A. Yes, sir. He had talked to him.
Q. All right. This was 8:30 or 9:00 p.m. on August the l0th, right?
A. Yes, sir.
MR. GRAY: Pass the witness, Your Honor.
CROSS EXAMINATION BY MR. VANCE:
Q. Mrs. Henley, how far did your son, Wayne Henley, go in school?
A. The ninth grade.
Q. And he is capable of reading and writing, is he not?
A. Yes, sir.
Q. And would you describe him as a person of average intelligence?
A. Yes, sir.
Q. Or perhaps a little more than average intelligence?
A. Yes, sir.
Q. From having four boys and undoubtedly being around a good number of boys as you were raising these four sons, you would say that he probably would be in the upper half so far as intelligence of boys generally go, wouldn't you?
A. I don't know. He's emotionally mature sometimes, but then other times he acts like a little boy.
Q. But I mean he is you said a while ago he is probably of above average intelligence so far as boys go in general that you have been around. Wouldn't that be a fair statement?
A. I guess so.
Q. And he has never had any difficulty in understanding the English language and what's being said to him, has he?
A. No. I don't guess so. Now, the first time that you heard from him I believe you said it was around 6:30 p.m. when he telephoned you at your house; is that correct'
A. Yes, sir.
Q. And I believe you stated that part of the conversation was on television and that part of it was not.
A. That's right.
Q. And about how long did he talk to you at that? time total?
A. I wouldn't imagine over four minutes, but that hit me so, I wouldn't swear to that.
Q. You would imagine over four minutes?
A. Not over four minutes.
Q. Not over four minutes. Did he tell you at that time what they were doing there at the boat yard?
A. No, sir.
Q. He didn't mention why they were out there at this particular boat stall?
A. He told me that he had killed Dean, but he didn't tell me what they were doing at the boat shed.
Q. He told you what?
A. I'm sorry. I didn't
A. That he had killed Dean.
Q. Dean Carll?
A. Yes, sir. ti,
Q. How long had you known Dean Carll?
A. Well, I hadn't known him but about six months. I mean really known him. I had spoke to him before, but he hadn't started coming to our home till about six months before this happened.
Q. Well, about how long had you known of him or known him to
MR. GRAY: Your Honor, we are going to object to this. It is completely immaterial to the issue before the Court on the admissibility of the oral and written statements.
MR. VANCE: I withdraw that question, Your Honor.
Q. (By Mr. Vance) Did he tell you anything as to why they were out at a particular boat stall in a remote area of town?
A. No, sir.
Q. Did he tell you the location?
A. He said it was out on Hiram Clarke Road I believe. I said, Where Dean works," and he said, "No, not where he works."
Q. And I take it from your previous testimony that he was talking very rationally at that time?
A. No, sir, not exactly.
Q. But he did know exactly where he was?
A. Well, he called it a warehouse.
MR. GRAY: We object to that, Your Honor. It would call for a conclusion on the part of this witness as to what Elmer Wayne Henley knew at the time he made this call.
MR. VANCE: Counsel has asked question after question that calls for a conclusion, Judge.
THE COURT:
Q. (By Mr. Vance) He told you that he was out at he called it a warehouse?
A. A warehouse
Q. Did he refer to the boat stall or the boat yard by any other name?
A. No. I had heard of the warehouse before, because Dean worked on David Brooks' car there. But I thought it was a warehouse.
Q. So you were aware that they, that Dean Corll and Wayne Henley and David Brooks, had gone out together to this particular location that Wayne Henley called you from?
A. Yes, sir.
Q. And had you ever been out to this location to have any idea where it was?
A. No, sir.
Q. But you had heard Wayne Henley speak of this location of the boat stall before?
A. He just said it was out close to where Dean worked, and Dean worked on Hiram Clarke Road.
Q. And had he told you where this place was prior to the call on August the 8th at 6:30 p.m.?
A. Just it was out close to where Dean worked was all he ever told me.
Q. But in response, if you would answer my question, had your son, Wayne Henley, ever told you about this boat stall prior to the night of August the 8th at 6:30?
A. He had told me about the warehouse, what he called the warehouse, yes, sir.
Q. So when Wayne called you at 6:30 p.m. on August 8th, he told you that he was there at that so-called warehouse?
A. Yes, sir.
Q. And I believe you stated on direct examination that Wayne Henley told you at that time, all right, mama. I'm with the police," words to that effect?
A. Yes, sir.
Q. And he said he was all right at that time?
A. He said, "It's all right."
Q. Well, didn't you as a mother inquire as to how he was; say, "Well, how are you?"
A. No, sir. I didn't. I was too shocked to ask how he was. I just asked where he was and could I come out there.
Q. But he did use the words, "It's all right"?
A. Uh huh. Well, I said, "Wayne, what are you doing there?" He said, "It's all right, mama. I am with the police."
Q. And he said this in a rational tone of voice?
A. Well, he was crying. He didn't sound right. I had to ask him who he was before I would even talk to him. That was on the news.
Q. All right. And you talked to him for about four minutes at that time?
A. Yes, sir.
Q. Now, I believe you said that you thought he was pretty well off or he said he was pretty well off then?
A. I didn't understand the question, sir.
Q. Didn't you say a while ago that he was pretty well off on direct examination? Perhaps you didn't.
A. No, sir. I don't believe.
Q. All right. He didn't go into any details at that time with you as to why he was there at the warehouse or the boat yard?
A. No, sir.
Q. So did you make any calls to any other attorneys other than Mr. Plotkin?
A. No. Mr. Plotkin was going to try to help me get another.
Q. So you did not call any other lawyers other than Mr. Plotkin until Mr. Pegelow and Mr. Melder got in the case?
A. Yes, sir. My lawyer helped me get in touch with them. I mean, my preacher.
Q. So the answer to the question then is: No, you did not contact any?
A. I did not talk directly to any others.
Q. Any other lawyers. All right. Now, I believe you stated that you went to the Pasadena police station and had spent approximately five minutes with your son, Wayne Henley, the next morning. Was that correct?
A. Yes, sir.
Q. And I believe you also stated that they took you to a lawyers booth there where you had a private conversation?
A. I guess it was a lawyers booth. They had four or five of them. I never had been in a jail before, so I don't know.
Q. And how long would you say that you spent in the lawyers booth with Wayne Henley at that time?
A. About five minutes.
Q. And what terminated this visit?
A. They just told me my time was up.
Q. And did Wayne Henley mention anything about having been out at the boat stall the night before?
A. No, sir. Of course, he asked me if I had heard it on television, and I said yes. And he just started crying. And I didn't ask any more questions, because he wasn't he didn't seem to me to be fit to be questioned.
Q. You didn't ask him anything about any of the facts of any kind of case?
A. Not that day, no, sir.
Q. And at the time that you talked to Wayne Henley, it was a private conversation? There were just the two of you in the room Yes, sir. and no other police officers in there or anydu body else?
A. No. He was just standing outside the door.
Q. You said you had never been to a jail prior to this time?
A. No, sir.
Q. You had never visited Wayne Henley in any jail previously?
A. No, sir.
Q. When did you tell Detective Mullican that you wanted a lawyer for your son?
A. Right after I saw him Thursday morning.
Q. a Was this a very brief conversation or a long conversation?
A. I guess I was in there about ten minutes.
Q. What specifically did you tell Detective Mullican about this?
A. I told him where Mr. Plotkin was and why he couldn't get there sooner and that he asked that Wayne not be questioned any further until he could get there. And I asked him if it was possible to have a doctor to see Wayne. than that, he just asked me about Wayne's history, his medical history, why I was so worried about his health.
Q. So Detective Mullican questioned you about Wayne Henley's medical history?
A. Only why I thought he was sick.
Q. Did Wayne Henley tell you that he was sick
A. Yes, sir.
Q. or that he was ill? What did he say was wrong?
A. He said, "Mama, I need a doctor. I need a doctor bad." He didn't say what was wrong, but he was jerking all over.
Q. Did you ask him, say, "Well, what's wrong with you? Does your stomach hurt?"
A. I said, "What's wrong?" He said, "I don't know, mama. I am just sick and I need a doctor." That's all he ever told me.
Q. So you have no way of knowing from what he said as to whether he was reacting to some physical illness or from some mental state, I take it?
A. No, sir. I don't know what was wrong with him.
Q. Now, Mr. Plotkin came by your house the ni; ht of August the 9th. That was the first time that you actually saw him, I take it?
A. No, sir. No. He came by Thursday morning real early to tell me he was going to court, but his wife would be in touch with Lieutenant Goad and when I could see Wayne, she would come and take me out there.
Q. All right. Then I believe you stated that you saw him again that night and he said that he didn't want to take this kind of case?
A. He said he wasn't able to take it.
Q. But that he would help get you somebody who would?
A. Yes, sir.
Q. Now, you saw your son again at 8:00 o'clock at night on Friday in the Pasadena jail when your sister took you out there; is that correct?
A. About 8:30 or 9:00.
Q. And how long were you with him at that time?
A. About thirty minutes.
Q. I take it that you had a fairly long conversati1?
A. Well, it wasn't a very coherent conversation, but it was longer than the first one.
Q. He was in a different cell then?
A. Yes, sir. He was in a padded cell.
Q. Did he tell you that he had been removed to a different cell, because he didn't like the first cell that he was in?
A. Well, they said he was moved, because it was a warmer cell.
Q. Well, did he tell you that he told him he was a little cold and they put him over into another cell where it was a little warmer?
A. He didn't know why they had moved him. I asked why they had him in a padded cell, they told me, because it was warmer and he couldn't have any clothes.
Q. Well, he had on clothes; he was dressed?
A. He had on a pair of overall, no other clothes, no socks.
Q. Now, you went down to the Houston homicide office on Friday afternoon, I take it?
A. No. That was Thursday.
Q. August 10th?
A. I'm sorry. Thursday, August the
A. 9th.
Q. At about 2:30?
A. Yes, sir.
Q. Or somewhere in there. Did you tell anybody down there did you call down there in advance and tell them you were coming down to homicide?
A. No, sir. Because he called me from Pasadena to tell me to meet him there.
Q. And, in other words, Wayne Henley told you when he was in the Pasadena Police Department custody or jail that they were taking him over to Houston homicide office, told you where he was going?
A. He just said the Houston jail. And that's where they sent me when I got there.
Q. Now, I believe you saw him again on Friday night, August the 10th, and spent some time with him; is that correct?
A. Yes, sir.
Q. I believe you said over half an hour?
A. About half an hour.
Q. And Mr. Pegelow was leaving as you got there?
A. He had been there.
Q. Did Wayne Henley complain of any illnesses at that time?
A. He had a cold. And he was hurting in his chest.
Q. Did you take that to be some asthma flare-up like he had had in the past?
A. I was afraid it might be, because he was cold.
Q. Did you ask him if he had any fever?
A. Yes, sir. He said he didn't know.
Q. Did you feel him, see if he felt hot?
A. I couldn't touch him. There was glass between us. And did he make any other complaints other than having a cold and some chest congestion?
A. Just and he said, "Mama, if they would just chain me to a tree and get me out of that solid room," and begging for a doctor.
Q. Did you know that he had seen a doctor while he was up there at San Augustine?
A. He told me when he called me that he saw a doctor.
Q. Did he also tell you the doctor said there wasn't anything wrong with him?
A. No. He didn't tell me that. The doctor gave him some medicine.
Q. Did he tell you what kind of medicine this was?
A. No, sir.
Q. Did you ever make any request of any of the police authorities in the Pasadena Police Department or Houston Police Department with regards to any kind of medicine or suggesting any kind
A. I asked them could I have his nerve pills refilled and bring them to him, but they said QI no.
Q. Who told you no that he couldn't have his nerve QI ill lll pills?
A. QI
A. Detective Mullican.
Q. What did Detective Mullican say about that?
A. He said it had to come from a doctor there. QI
Q. So what were these nerve pills? What kind?
A. Valium.
Q. Thallium?
A. Valium.
Q. Valium?
A. Yes, sir.
Q. Valium is sort of a sedative, tranquilizer type of medicine?
A. Yes, sir.
Q. And I take it you told Detective Mullican that it was Valium you were talking about?
A. I just told him that we had some nerve pills and I could get Wayne's refilled. And he said he couldn't have any medication from me.
Q. From him, Detective Mullican, but he could have medication from a doctor?
A. A doctor, if I could get one out there. wouldn't take him to one. And I couldn't get one out there.
Q. So outside of his condition of at times acting excited or hysterical, the most physical ailments that he discussed with you was the fact that he had a cold; would that be a fair statement?
A. He just said he was cold and his nose was running. I asked him if he had a cold, and he said yes. I said, "Are you going to have asthma," and he said, "Not yet."
Q. He said he hadn't had any asthma attacks?
A. Not yet.
Q. So the most that he complained of to you about his physical ailments or sicknesses was that he had a runny nose and a cold?
A. He said he was sick, but he didn't know what to tell me was wrong with him outside of the cold. There was more than that wrong with him.
Q. Well, did he ever complain of any stomach pains or headaches? He said he hurt all over, and he had a headaches. Said he had a headaches?
A. Uh huh, just said he hurt all over.
Q. You didn't tell us this before. When did he tell you that he hurt all over?
A. ill
A. Well, when he was telling me he had a cold and he was cold, he said, "I ache all over." ill He ached all over or hurt all over?
A. Well, it's the same thing. He ached or hurt. I don't remember just exactly which word he used. In other words, he was hurting everywhere. He couldn't pinpoint his trouble.
Q. Every time you attempted to see him that he was present either at the Houston Police Department or Pasadena Police Department, you were able to see him?
A. Yes, sir.
MR. VANCE: That's all the questions I have.
MR. GRAY: We have nothing further from this witness at this time, Your Honor.
THE COURT: You want this 1. A023 witness to remain? 2 MR. GRAY: Yes, p 1 ease. 3 THE COURT: All right, you will 4 remain. 5 MR. VANCE: We want to be sure
Q. she is under the rule, Your Honor.
Q. THE COURT: Yes.
Q. MR. GRAY: I don't believe she
Q. was placed under the rule, Your Honor. She was just sitting there. QI
THE COURT: Mrs. Henley, let me admonish you that the witnesses are under the rule, which simply means that QI 14 they must remain outside of the hearing 15 of the Court, further that you do not discuss this case or any of your testimony with any of the other witnesses or with anyone else, except that you may discuss it with either, any or all of the attorneys representing the State or the Defendant alike. But if you should so discuss it with any of the attorneys, then likewise it will be without the hearing of anyone else, not in the hearing of anyone else. So you will remain with the rest of the witnesses.
Q. All right. Supposing
Q. we stand recessed. We will reconvene at a quarter till 11:00.
Q. Retire the Defendant,
Q. please.
(Brief recess.)
THE COURT: All right, gentlemen, call your next witness.
MR. GRAY: We would call Samuel Plotkin.
(The witness, Samuel H. Plotkin, was administered the oath by the clerk of the court.)
SAMUEL H. PLOTKIN, the witness, called to testify by the Defense, having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. GRAY:
Q. Tell us your name, please, sir. lll
A. Attorney Samuel H. Plotkin.
Q. Where do you live, Mr.
A. 5806 Belrose.
Q. Is that here in Houston?
A. Yes, sir.
Q. You practice here in Harris County, Texas?
A. Yes, s1r, 1906 Ashland.
Q. I take it then you're duly licensed by the Supreme Court of Texas to practice law in the State of Texas?
A. Yes, sir.
Q. How long have you been licensed to practice in this State, Mr. Plotkin?
A. In the State of Texas since 1960. Have you had an occasion in the past to represent
Q. Mrs. Henley?
A. Yes, sir.
Q. Tell us briefly what you represented her on, Mr. Plotkin.
A. I represented her on her divorce action.
Q. When was that?
A. That was about 1970.
Q. Was a divorce granted along about that time?
A. Yes, sir.
Q. Do you recall whether or not chat proceeding was filed against Elmer Wayne Henley's father?
A. Yes, sir.
Q. That was the final decree in the divorce?
A. Yes, sir.
Q. Tell me this, Mr. Plotkin: Have you also represented David Brooks' father in the past?
A. Yes, sir. I represented him in his divorce action.
Q. When was that?
A. I wouldn't know exactly, but it was prior to Mrs. Henley's divorce, probably four or five years before.
Q. All right. No connection between those two divorces?
A. No, sir.
Q. Did you have an occasion to hear from Mrs. Henley back in August of 1973, Mr.
A. Yes, sir.
Q. Do you recall when that was?
A. Well, it was I would say around August the 8th.
Q. What time of the day or night was it, sir?
A. It was early in the morning before I went to my regular office hours.
Q. You were at home at the time?
A. No. I went to her house.
Q. I see.
A. Met her at her house early that morning prior to 9:00 o'clock when I usually open my office, which is right near her house.
Q. All right. What time did you go by her house?
A. Oh, I would say probably around 8:30, because I open up the office about 9:00.
Q. Any particular reason why you went by there on this occasion?
A. I had seen something in the Houston Post relating to Elmer Wayne Henley, Jr.
Q. All right. Had you represented Elmer Wayne Henley, Jr. in some sort of juvenile proceeding in the past, also?
A. Yes, sir, about a year before, about '71 no, '72, I'd say.
Q. Had you called Mrs. Henley before you went by or what?
A. No. I just went by on the way to the office, because I had seen this.
Q. What had you seen?
A. I had read the Houston paper, the Houston Post, in the morning and I couldn't believe that Wayne was involved in something like this. I went by to talk to her about it, give her some advice.
Q. All right.
Q. At this time I take lt then you were more or less the family lawyer for these folks; is that right?
A. I felt that way. Did Mrs.
Q. -Henley ask you to represent her son in this procedure?
A. That was my understanding.
Q. All right.
Q. And this occurred about 8:30 the morning of August the 8th?
A. Yes, sir.
Q. How long did you stay there and converse with Mrs.Henley?
A. I would say that we discussed it about a half hour at that time. Uh huh.
A. Then later on in the morning, Mrs. Henley went out to visit Wayne. And she came back to my office. And I took her home and we discussed it further.
Q. All right. After you left her home or even while you were there, did you make any effort to contact any police officers?
A. The first police officer I believe that I contacted was somebody in Pasadena, because she had told me that she had attempted to give Wayne my card and they refused it. And so I called them to ask them why. And, of course, he said it was personal property and the man QI could not be given personal property.
Q. This was someone in the Pasadena Police Department?
A. Yes, sir.
Q. What time did this conversation take place?
A. I would say it was I had a case at 1:30. I would say probably this was about 11:00 o'clock.
Q. ll:00 a.m.?
A. Yes, sir.
Q. On the 8th?
A. Yes, sir.
Q. Did you have anything set in court that morning?
A. Yes. I did.
Q. Now, you said you gave Mrs. Henley one of your cards. What was the reason for that?
A. Well, I just wanted him to have it on him. Of course, I expected a lot of interrogation. And this was remind him to keep silent. QI
Q. And did you instruct her or not to take the QI card out there and give it to him?
A. rtJ rtJ
A. Yes, sir. I did.
Q. Did you tell her anything else that she should convey from you?
A. Well, I told her to be sure that nobody QI coerced him into signing anything and that he? shouldn't say anything and that she shouldn't say anything.
Q. All right. And then I take it that you learned some time that morning then that they wouldn't give your card to him; is that right?
A. Yes, sir.
Q. And then after that was when you called out there?
A. Yes, sir. Do you know the officer that you talked to out there, Mr.
Q. Plotkin?
A. It was one of three. It was either
Q. Lieutenant Goad or
Q. Detective Lawrence or Detective Mullican. In fact, I talked to officers quite a few times that week.
Q. Well, it was someone in homicide then?
A. It was one of those three gentlemen.
Q. What I am getting at, you didn't have a conversation with the desk sergeant or anyone like that?
A. No, no.
Q. It was someone
A. I knew who to call.
Q. It was someone in authority?
A. QI
A. She had told me she had after she had seen the boy and they had only let her see him five minutes that she was asked to go into an office in the Pasadena police station.
Q. Did you at that time tell whoever this was that you talked to out there that you were representing Elmer Wayne Henley?
A. Oh, yes. I did. They knew it.
Q. Did you tell them anything in reference to any further questioning of him or any questioning of him?
A. I don't recall a specific conversation, except I expressed my disgust with them in refusing a young boy like this, not letting a voun boy like this have a card from his attorney, reminding him of his constitutional rights.
Q. Did you object to him not having his constitut1onal rights granted him?
MR. VANCE: Object to the leading nature. Counsel is constantly leading the witness.
Q. (By Mr. Gray) Tell us whether or not you told them that, Lawyer Plotkin.
MR. VANCE: I still object to the leading nature.
THE COURT: Don't lead the witness.
Q. (By Mr. Gray) Tell us what you recall of the conversation with either Lieutenant Goad, Detective Lawrence or Mullican, whoever it was you talked to.
A. I told them I thought he had a right to have my card with him at all times to remind him of his constitutional rights and that I thought that he wasn't doing the right thing in refusing to allow him to have it on his person.
Q. Anything else?
A. Not that I remember. Oh, yes. I also told him that I thought that the mother should have had more than five minutes to talk to her son.
Q. Did you ask them whether or not you could see the boy?
A. Yes. I did. And what were you told, if anything? I was told that I could, but that I should call before I came out.
Q. Did you make any definite arrangements to go out there and talk to this boy?
A. With the Pasadena police, are you asking? Yes.
A. Well, after he had been taken to Sam Rayburn that day, I called up and asked them if they would notify me when he came back.
Q. What day was that now?
A. Sir? What day are we talking about now?
A. I would say it was about probably the 9th. And you made a telephone call
A. Yes, sir.
Q. Where did you call?
A. Well, first I called the Pasadena police, you know, to tell them to please call me when he came back. And a fellow said, well, he leaves at 5:00 o'clock. He didn't know if he could arrange it. I told him please leave word with whoever took charge of that office after, but they never did call.
Q. Well, in other words then, you asked whoever you talked to out at Pasadena Police Department to have Henley call you when he returned from Sam Rayburn?
A. No. They should call me, so I could just come right out there and see him.
Q. Had you known before that call that he had gone to Sam Rayburn?
A. Yes. I did.
Q. Where did you get that information?
A. I think the mother called to tell me that they were going to take him out to Lake Sam Rayburn and she gave me a couple of people that I could call.
Q. Is there any reason, Mr. Plotkin, why you didn't go out there on August the 8th after your conversation with Mrs. Henley at 8:30 a.m. on that date?
A. I'm trying to remember if that was the night. that they had taken him to Lake Sam Rayburn. And if it was, therefore, he wasn't available out at Pasadena. He was out near Lake Sam Rayburn. Well, are you saying then that the reason you didn't go out there and see him that morning was because they had taken him somewhere?
A. That evening, yes, sir.
Q. When did you call? Where did you call, San Augustine or somewhere up in the country there?
A. rtJ
A. Well, I remember that Mrs. Henley had given me the names of
Q. Texas Ranger, Charlie Neel.
Q. Did you call Charlie?
A. I called him at his home and at his office. And I left word with his wife to have her to have him call me.
Q. Did he ever call?
A. No.
Q. Who else were you supposed to call?
A. Well, that night I remember I was lying down. And I got a call from Mrs. Henley. And she gave me the number of Sheriff Johnny Hoyt. And I called out there. Well, she had called about 10:30. I guess it was a quarter of 1l:00 by the time I got hold of the sheriff.
Q. Where is Sheriff Hoyt located?
A. Well, I know he is the sheriff of San Augustine. And I called him at his office and talked to him.
Q. Did you et ahold of him?
A. Yes, sir.
Q. What time was this?
A. I would say it was about a quarter till 11:00.
Q. This was on the 9th?
A. As far as I can recall.
Q. And you got the sheriff on the telephone?
A. Yes, sir.
Q. Did you have a conversation with him?
A. Yes, sir.
Q. What did you tell him, and what did he tell you?
A. Well, I told him I was the attorney for Wayne Henley and that he had just called his mother and asked me to call him and that I wanted to talk to him, because I felt I had a right to
Q. What did Sheriff Hoyt say?
A. Well, he said that he was the sheriff in a small town and it was around ll:00 o'clock and that the boy was probably sleeping and he didn't want to disturb him.
Q. They had done rolled up the sidewalk?
A. Well, of course, I told him that the boy just had called me and I was sure he wasn't sleeping. And even if he was sleeping, I still felt I should be able to talk to him.
Q. What did he tell you?
A. He said, "Well, if I went up there and tried to ill wake him up, I may wake some other people and I don't want to do that, because the people lll ill here go to bed early."
Q. So he refused then. Is that what you are telling me?
A. He told me to call him at 7:30 the next day and I could talk to him as long as I wanted to,
Q. 7:30 a.m.?
A. Yes, sir.
Q. On the 10th?
A. I'd say around the 10th.
Q. Well, did you get on the phone the next morn-
A. I got on the phone about 7:15.
Q. Did you call Sheriff Hoyt?
A. I called him, but somebody up there answered, said that like I'd predicated, that he wouldn' be there he had gone out 5:15 or 5:30 with some young boy.
Q. They get up early too, then?
A. I guess they do.
Q. Well, I take it then you were not able to complete any telephone conversation with Wayne Henley in San Augustine?
A. No, sir. I was not. At the time you made your first call up there on the evening of August the 9th, did that occur after you had had a conversation with Mrs.
Q. Henley?
A. Yes, sir.
Q. And in the course of that conversation, did you learn that she had just talked to Wayne?
A. Yes, sir.
Q. By telephone?
A. Yes, sir.
Q. In San Augustine?
A. Yes, sir.
Q. How much longer did you remain in this case?
A. Well, probably just another day or so.
Q. Any particular reason why you got out?
A. Well, one reason, of course, is I had a light heart attack about two years ago, and my family were a little nervous about my health. of course, I felt that I could assist, but I didn't want to be the prime counsel in it.
Q. Did you discuss this with Mrs. Henley?
A. Yes, sir.
Q. Was that on August the 10th or do you recall what date it was?
A. It was either the 9th or 10th.
Q. Did you do anything else on this matter other than what you have told us about, Mr. Plotkin?
A. The only other thing I could remember would be going down to the police station.
Q. Which police station?
A. Houston police station.
Q. When?
A. It was the day that Wayne Henley was being taken out to Lake Sam Rayburn.
Q. This was before your call to San Augustine?
A. Yes, sir.
Q. What time of day was it?
A. I would say it was about l:00 o'clock. I was in trial. And it was right after this case ended in Judge Woodall's court. I would say it was about between 4:00 and 5:00 o'clock.
Q. Where did you go, down to the Houston jail?
A. I went to homicide.
Q. And who did you talk to there?
A. I think his name is Lieutenant Breck Porter.
Q. Was he the man in charge at that time?
A. Yes, sir.
Q. What was your conversation with Breck Porter?
A. fl. Well, I had called during the trial and
Q. During the trial in Judge Woodall's court?
A. Yes, sir. And asked him to hold Wayne Henley QI till I got there, that I was in trial.
MR. VANCE: Your Honor, I am going to object unless he can specify who he talked to. He said I asked them. QI
THE COURT:
Q. (By Mr. Gray) Was this Breck Porter that you asked?
A. Sir?
Q. Was this conversation with Lieutenant Porter?
A. No. First I called and asked for Police Chief Short. And the girl, the PBX operator, would. not let me talk to him.
Q. Why not?
A. Well, she said he didn't handle these things. I told her who I was, but she said, "I will have to connect you to homicide." So she connected me to somebody at homicide. And I left the message for her to call. And I called my wife and had her call again.
Q. And what message did you leave with the homicide division of the Houston Police Department?
A. To please keep him there till I got there, that
MR. VANCE: Your Honor, we would ask if this could I mean, you don't leave a message with a department. You leave it with a person. And we would ask he try to pin down who this was, if he knows. THE COURT: Sustained.
Q. (By Mr. Gray) Do you know who you talked to?
A. I do know it was a young lady, but I didn't get her name.
Q. Did she identify herself as being in the homicide division?
A. Yes, sir.
Q. Of the Houston Police Department?
A. Yes, sir.
Q. Did you leave a message with her?
A. Yes, sir.
Q. You don't know her name?
A. No, sir.
Q. What was the message?
A. The message was please tell the person in charge to hold Wayne Henley there until I could get there, because I felt that he was entitled to have his counsel present with him at all times.
Q. And I presume she took the message as far as you know?
A. Yes, sir.
Q. Did she say she would tell somebody that or throw it in the wastebasket or what?
MR. VANCE: Well, this would be speculative.
MR. GRAY: We withdraw that question, Your Honor.
A. (By the Witness) I did talk to him later.
Q. You talked to who later?
A. Lieutenant Breck Porter.
Q. What time did you talk to Breck Porter?
A. That was, like I say, between 4:00 and 5:00 o'clock that day.
Q. Well, then this conversation with the young lady occurred earlier than that?
A. Yes, sir.
Q. What time was that?
A. + A4043
A. Probably around 2:00 o'clock, I would guess.
Q. You had a recess, I take it, in the trial?
A. It was during the recess of that trial.
Q. All right. Now, you called Breck between 4:00 and 5:00, somewhere along in there?
A. Yes, sir.
Q. What did you what was your conversation with QI Lieutenant Porter?
A. Well, I was rather argumentative.
Q. QI Who was argumentative, you or him or both?
A. Well, maybe both.
Q. All right. What was it about?
A. I said that I had called. And he seemed to QI indicate that he knew that I had called, but that he was handling the Houston department, the Houston Police Department, end of it.
Q. End of what?
A. Of it.
Q. The Henley investigation?
A. Yes. And Wayne Henley was under the Pasadena jurisdiction. Therefore, he had no right to tell him what to do. And if he wanted to talk, that was fine with him.
Q. That was fine with Lieutenant
A. Lieutenant Porter. + 4044
Q. Porter? Did he tell you whether or not they had had the boy down at the Houston police homicide division before that time?
A. They said he did. He had come from Pasadena to be identified by David Brooks. And he had already gone.
Q. And where did this identification take place?
A. It took place at the police station.
Q. The Houston police station?
A. Where David Brooks was. All right.
Q. What else did he say in reference to that?
A. Well, he was wanted to know if I wanted to fight about it, things like that, got up out of his chair. And I told him that I thought he was depriving the young boy of his right to have a lawyer present.
Q. Well, did you go over to the police station and have this conversation with Lieutenant Porter, or was it on the telephone? Will you repeat that, please? Was your conversation with Lieutenant Porter on the telephone?
A. No. It was in person.
Q. You went over to the homicide division?
A. Yes, sir.
Q. And he got up and wanted to know if you wanted to fight or something?
A. Yes, sir.
Q. What did you tell him?
A. I told him I wanted to fight for the boy's constitutional rights. I didn't want to fight him in person.
Q. Well, that didn't come to anything then. What else, if anything, did Lieutenant Porter tell you?
A. He told me that if the boy wanted to talk, he surely wasn't going to tell him to keep quite.
Q. Anything else?
A. And he made a lot of remarks indicating that he felt the boy was guilty and he didn't deserve any mercy and things like that. It was maybe a half hour conversation. And then you left, I guess? Yes, sir.
Q. And then after that, you called up to San Augustine, I take it?
A. Yes, sir. Did you talk to any other police officers during this period from August the 8th to August the l0th when you were representing Henley?
A. None other than I think that I have mentioned.
Q. Did you talk to anyone else out at Pasadena?
A. No, sir.
Q. Did you ever go out to Pasadena
A. No. I didn't. to try to talk to anyone?
A. I didn't, because he was already out to Sam Rayburn. And about that time, Mr. Melder said that he could handle the situation. And I QI didn't think we ought to have too many chiefs.
Q. So you turned in your headdress and left?
A. I just told them that Charlie Melder was
Q. QI good friend of mine. Did you have anything else to do with the matter after that episode?
A. The only other thing was another call to Pasadena rebuking this I think it was detective for not calling me. And he said he had Just forgotten, but if I wanted to come out that night, I could. But by that time, I was not handling any of the matter.
Q. This was then after the 10th?
A. I think it was probably the 10th or 11th.
Q. Well, I take it you Just called out there complaining then?
A. That's right.
Q. Because they hadn't delivered your message; is that right?
A. That's right.
Q. In your conversation with any of these police officers, did you have any discussion with them about Elmer Henley's physical or mental condi- QI tion?
A. None, other than probably mentioning that
MR. VANCE: Well, we would ask the place of the conversation, Your Honor, as to who he talked to and QI when and that the proper predicate be laid.
MR. GRAY: That's what we are trying to do, Your Honor. We are trying to find out if he had such a conversation.
THE COURT:
A. (By the Witness) It was in telephone conversations with the Pasadena Police Department.
Q. Do you know who you talked to?
A. I can't remember which one of these three gentlemen that I talked to, but I told them that the boy was just a youn boy and that he should have counsel present, he shouldn't be asked any questions until counsel was there.
MR. VANCE: Your Honor, we would ask that this be specified as to when and where this was.
THE COURT: QI
Q. (By Mr. Gray) Is this the conversation you had about ll:00 a.m. on August the 8th with either QI Lieutenant Goad, Detectives Lawrence or Mullican?
A. The first time, it was. That was about the first time.
Q. And that's when this conversation took place?
A. Yes, sir.
Q. That you just related?
A. Yes, sir.
Q. Any others that you can recall at any other time?
A. No. I cannot recall right now.
MR. GRAY: Pass the witness, Your Honor.
CROSS EXAMINATION 3 BY MR. VANCE: 4 G Mr. Plotkin, I believe you have practiced law 5 for about thirteen or fourteen years now; 6 that correct, sir? 7 In Texas, yes, sir. 8 Q And how long have you been practicing here in 9 Harris County? 10 The same. 11 2 The same length of time. And you have handled 12 criminal matters on other occasions, have you not? 14 Yes, sir. 15 And approximately how many criminal cases would you say you have handled during the course of an average year during this time? Oh, I would probably say between ten and twenty. I am primarily a civil attorney. But you would handle perhaps ten to twenty criminal cases a year over a thirteen year period? I would imagine that would be about right. e Roughly. So you had probably handled several hundred cases or two or three hundred criminal cases?
A. Probably something like that, not more.
Q. And you have tried criminal cases before, you not?
A. Yes, sir.
Q. Tried them to juries?
A. Yes, sir.
Q. On a contested basis?
A. Yes, sir.
Q. And you had represented this Defendant, Wayne Henley, before in juvenile court; is that correct?
A. Yes, sir.
Q. And when was that that you had represented him before?
A. It was around August, just not knowing the specific date, but I would say around August of '72.
Q. Did you ever represent him in any other court, in any adult court?
A. No, sir.
Q. All right. Now, you were the one who went by Mrs. Henley's house that morning?
A. Yes, sir.
Q. And this wasn't pursuant to a telephone call by h r?
A. No, sir. It wasn't, because I had just, as I stated, read the paper that morning. lives right by the office.
Q. You had represented her on a divorce case going back to about 1970,
A. Yes, sir.
Q. I think you said? So you stopped by there and spent about thirty minutes at that time
A. Yes, sir.
Q. with her; is that correct? All right. this was the first time that you had had any discussion with her or anybody in conjunction with this particular case?
A. Yes, sir.
Q. Did you ever go out to the Pasadena Police Department?
A. No, sir.
Q. Were you aware from what Mrs. Henley had told you that it was the Pasadena Police Department that was handling this case?
A. Yes, sir, because that's where she went.
Q. And that it was the Pasadena Police Department that had the Defendant, Wayne Henley, in custody?
A. Yes, sir.
Q. And that he was being held at the Pasadena jail?
A. Yes, sir.
Q. And she or somebody had to tell you that either Detectives Goad or Lawrence or Mullican were handling the case and in on the case from the standpoint of the Pasadena Police Department?
A. Yes, sir.
Q. And so you called and talked to one of these persons at the Pasadena Police Department, but you are not sure which one, at 11:00 o'clock that day?
A. I don't recall the name, but I recall that it was the same person that Mrs. Henley had spoken to that morning.
Q. Mrs. Henley had told you that she had had a conversation that morning with somebody in homicide?
A. That's right. She had to go to his office and talk to him.
Q. And if that was Detective Mullican, then that was who you had talked to?
A. Yes, sir. That was.
Q. Now, did you discuss any arrangements with Mrs. Henley about taking this case and representing Wayne Henley, or was it just left open?
A. Well, we didn't have a signed power of attorney or anything like that. It was just an understanding that we had. After she came to Pasadena, she came to my office. We discussed the case, what we could do, how much the bond might be and the way we were going to handle it.
Q. Now, when did she come to your office, Mr. Plotkin?
A. That was that same morning after she had the same morning that I had been to her home and she had gone out to the police station. From the police station, she came back to my office.
Q. Now, that would have been I believe you have been saying August the 8th. But if the factsshow that that was on a Thursday morning, the 9th, 1t would be Thursday morning the 9th; would it not?
A. If I recall, it was Thursday morning.
Q. What time was your hearing in court that day?
A. I recall it was at the police station and it was about, oh, some time in the morning. wasn't at 9:00 o'clock. It was somewhere I'd say between 10:00 to 12:00.
Q. Well, what time did Mrs. Henley come by your office? You had seen her from 8:30 till 9:00 that morning. And then she had driven a fairly considerable distance, I take it, to the Pasadena Police Department, got back to your office and got back to your office prior to your going to court; is that it?
A. Yes, sir.
Q. The sequence of events?
A. Yes, sir.
Q. Then it's, what would you say, about a forty minute drive to the Pasadena Police Department?
A. I would say that.
Q. Take about perhaps even an hour and a half to get out there and get back, not counting any other time; is that correct?
A. Yes, sir. My court case for the afternoon was at l:30, and it was before that.
Q. Now, you never really had any definite understanding that you would take this case and you would be representing Wayne Henley, did you?
A. It was my understanding that I was, if that's the question.
Q. It was your understanding from your conversation with Mrs. Henley that you were?
A. That I was the attorney for them in this case.
Q. For them?
A. You mean for Wayne Henley.
A. For Wayne Henley and Mrs. Henley, protecting any of the rights of both individuals.
Q. And so that would have been at some time after she had gone to the Pasadena Police Department and come back or been pretty close to noon, I take it, on Thursday,
A. Yes. the 9th?
A. After I talked to her, before she went out to Pasadena and after she went to Pasadena.
Q. But you didn't decide to take the case until she came back from the Pasadena Police Department you said a while ago.
A. No. If I did, I want to retract that. I mean I told her that I would. It was my understand- 1ng that I was going to handle the case when I saw her early this morning, because she had no other attorney.
Q. But you did not contact the Pasadena Police Department until she had come back from the Pasadena Police Department; is that correct?
A. Yes, sir. I believe that's correct.
Q. And I believe you have said that you had given her a card to take to the Pasadena Police Department and to deliver to Wayne Henley?
A. Yes, sir.
Q. So your first contact with any of the homicide detectives or with Detective Mullican in this case would have been some time around noon at the very earliest on Thursday, August the 9th; would that be a fair statement, giving her time to go out there and back after you had left her home around 9:00 that morning or a little later?
A. le
A. I can't recall if I had talked to them sooner, but I doubt it. I think it was after she returned and I took her home that I called. QI And she told me that they had, as I related, only let her talk five minutes and refused to let him have my card.
Q. So at the time that you called the Pasadena Police Department homicide office, so far as you were concerned, you were representing Wayrie Henley?
A. I felt that I was.
Q. Well, only you could know what's in your own mind.
A. In my own mind, I was.
Q. Could that call, the first call that you made to the Pasadena Police Department, be shortly before you left to go to this 1:30 or 2:00 o'clock court hearing?
A. It could be.
Q. But you don't know what time it was I take it from your testimony here.
A. The exact minute, you mean?
Q. Well, within fifteen or twenty minutes or approximately what time you made that call, could you give us a range like 12:00 till 2:00?
A. I would say between 10:00 and 12:00.
Q. You did not make any notation or written memorandum, I take it, of who you contacted in the Pasadena Police Department or the time of the telephone call; is that correct?
A. I did not.
Q. So all you can give us now is some kind of estimate it was some time before you left to go to this 2:00 o'clock court hearing or 1:30 court hearing?
A. Yes, sir.
Q. And I believe you stated on direct examination your main concern or main complaint with the person from the Pasadena Police Department that you talked to was the fact that he had not delivered the card to Wayne Fenley?
A. That was one of the main complaints and the fact that they had only let him talk to his mother for five minutes.
Q. Now, you were familiar from that conversation and also from what Mrs. Henley had said that they had been questioning Wayne Henley and had taken him out to this boat rental stall the night before?
A. Yes, sir.
Q. And that they were questioning him the next day; is that correct? You were aware of that fact?
A. I wasn't aware of the fact they were questioning him before I had called them.
Q. The morning of the 9th?
A. Yes, sir.
Q. Which would have been Thursday?
A. That's right.
Q. You cannot say here today with any certainty that you specifically instructed anybody from the homicide department on around noon of the 9th when you first called out there for Detective Mullican or whoever it was you talked to to not talk to Wayne Henley any further, can you, with any degree of positive certainty?
A. I cannot say with positive certainty. I did tell them that I was the attorney, which they knew, and that I was coming out to them. I asked them not to coerce the boy.
MR. VANCE: That's all I have.
A. (By the Witness) And that I thought he had a right to have my card. QI
REDIRECT EXAMINATION QI
BY MR. GRAY:
Q. Now, Mr. Plotkin, did I understand that your QI wife was the one who drove Mrs. Henley out to the Pasadena Police Department on that morning?
A. Yes, sir.
Q. Now, what aspect was this case in when you read about it or heard about it and then went over to see Mrs. Henley? Did that involve only the killing of Dean Corll, or did it involve any other matters?
A. Well, at that time, from the newspaper report, as I recall, it was only regarding the Dean Corll matter.
Q. All right. And that really then at the time you got into the case, that was the only matter you were concerned with?
A. That's right.
Q. You didn't know about any collateral matters that might evolve from this investigation?
A. Not at that time.
Q. Now, when was it that you first learned that there might be some other criminal charges involving Elmer Wayne Henley, Jr.?
A. That was that Thursday after trial about 4:00 or 5:00 o'clock.
Q. Was that after your wife had taken Mrs. Henley
A. Yes, sir.
Q. a out to Pasadena?
A. Yes, sir.
Q. And after you had had your conversation with either Lieutenant Goad or Detectives Lawrence or Mullican?
A. Yes, sir.
Q. In your conversation with those officers up to this point, did any of them inform you that there might be some other criminal charges involved in the investigation?
A. No, sir.
Q. As far as you knew, I take it then there was just this one case?
A. Yes, sir.
Q. What appeared to be a case of self-defense, right?
A. Yes, sir.
Q. Now, after you found? out that it involved a whole lot more, is that when you called Lieutenant Porter, or was that before or after?
A. ti
A. To pinpoint it, I would say it was the day that they were taking Wayne Henley out to Lake Sam Rayburn, whenever that day was. I recall that incident. All right.
A. Because that's what I was trying to prevent.
Q. Of course, at that time time you knew there was a lot more involved than the shooting of Dean Corll?
A. Yes, sir.
Q. Now, did you know this before you talked to Lieutenant Porter?
A. I knew that they were going to take him out to Lake Sam Rayburn for the purpose of digging up some bodies.
Q. All right. And, of course, you knew that at the time you called up there and tried to get him on the telephone in San Augustine, didn't you?
A. Yes, sir.
Q. Can you pinpoint the time when you first learned that the police had taken Elmer Wayne Henley, Jr. out to this boat shed?
A. That was the morning, I think Thursday morning, when I read it in the Houston Post. How did you ascertain that Elmer Wayne Henley was going to be brought down to the homicide division on that afternoon?
A. I believe that his mother had called the office.
Q. What office?
A. My law office.
Q. All right.
A. And she told my secretary that this was going to be done. And my secretary called me at Judge oodall's court. And that's when I called homicide.
Q. Had you had any occasion to contact the Houston homicide division up to that time?
A. No, sir, because to my knowledge he was in Pasadena and under their jurisdiction.
Q. Did Lieutenant Porter tell you where they were taking Elmer ayne Henley or where they had 2 taken him or who had custody of him?
A. They said to my knowledge that he had released - 4 they had released Wayne Henley to the Pasadena 5 police. They were taking him out to Lake 6 Sam Rayburn. 7 MR. GRAY: We pass the witness,
Q. Your Honor.
Q. MR. VANCE: Just a couple of 10 other questions, Your Honor. 12 RECROSS EXAMINATION 14 BY MR. VANCE: 15 Now, Mr. Gray has asked you what your state of 16 mind or understanding was of any problems that 17 this Defendant, Elmer Wayne Henley, had in 18 conjunction with any case, and you have told 19 us that you were primarily concerned with the 20 killing of Dean Corll; is that your testimony?
A. 21 With any possible action that might be taken 22 against the Defendant, Wayne Henley, as to the 23 killing of Dean Corll. 24 I would say that's true, because I didn't know 25 of any possible implication of Wayne Henley in anything else but that slaying, that particular slain. Now, you didn't get into this matter in the least until you voluntarily drove over to Mrs.
Q. Henley's house after reading, I take it, the headlines on the front page of the Post about what had occurred the day before?
A. Yes, sir.
Q. And you saw in those headlines that approximately fourteen bodies had been recovered at a boat stall the day before; isn't that a fair statement?
A. I think that's a fair statement.
Q. And when you got over there and talked to Mrs. Henley, she related the conversation that she had had with Wayne Henley about the fact that he was out there the night before and had called in and part of it was on television and that he was out there with the police leading them to a bunch of bodies; isn't that correct?
A. We discovered that.
Q. Well, she told you that or you read it in the paper?
A. Also read it in the paper.
Q. But you were generally aware?
A. I read it in the paper that morning.
Q. But you were generally aware that Wayne Henley had led the police to the discovery of approximately fourteen murder victims on the preceding afternoon and evening; isn't that correct?
A. Restate that, please.
Q. Isn't it a fair statement to say that you were generally aware when you went by and talked to Mrs. Henley that morning and after talking to her that this Defendant, Wayne Henley, had led the police to the discovery of approximately fourteen bodies that were recovered at this boat stall where he had called her from the night before?
A. I was aware of that, but not any possible implication of Wayne Henley with the bodies. She wasn't either, I don't believe.
Q. It did not occur to you that Wayne Henley, bein the person that led the police to the recovery of fourteen bodies might be a suspect as a participant in those murders? Did that occur to you as a lawyer, as a person who has. tried two or three hundred, handled two or three hundred criminal cases, or not?
A. Well, I can honestly say that it occurred to me that this might be something that she 3 couldn't believe, but I could assume that there 4 night be other developments. 5 MR. VANCE: That's all I have.
MR. GRAY: No further questions. 7 THE COURT: All right, sir, QI 8 you may stand aside. 9 Call your next witness. QI ill
MR. PLOTKIN: May I be excused? lll
MR. GRAY: We have no objection, Your Honor.
MR. VANCE: It's fine with us, QI as long as he you are generally available, aren't you?
MR. PLOTKIN: Oh, yes.
THE COURT: All right. Both sides are agreeable you may be excused, but. remember you are still under the rule.
MR. PLOTKIN: Yes,
THE COURT: And you will be available.
MR. PLOTKIN: Ten minutes notice.
THE COURT: All right,
Q. MR. GRAY: May we approach the
Q. bench a moment?
Q. (Conference at the bench
Q. out of the hearing of the
Q. court reporter.)
Q. THE COURT: All right. You lll may retire the Defendant. All right, ladies and gentlemen, as the Court explained to you earlier, Mr. Pegelow is in trial in another court and trying to work with that judge who has been kind enough to let him come over here, Judge Woodall. So we will stand recessed until tomorrow morning at 9:00 o'clock. Will you tell all of the? witnesses to be back at 9:00 o'clock in the morning, please.
(Day's recess)
THE COURT: Let's see, Mr. Gray, is Mr. Melder or Mr. Pegelow
Q. MR. GRAY: I haven't heard
Q. from them, Judge. I don't know where
Q. they are. If I could have a moment, I will see if I can round them up.
(Brief interruption in QI proceedings.)
MR. GRAY: I think maybe we can proceed without them. Let me go out here and talk with a witness just a moment, and I will be right back. QI
(Brief pause in proceedings)
MR. GRAY: Your Honor, I think we can proceed, We have a sheriff here from San Augustine and he needs to get back to enforce the law up there. We could probably dispose of him.
THE COURT: All right, Have you been sworn,
THE WITNESS: No, sir.
THE COURT: All right, raise your right hand and be sworn, please. 3 (The witness, John Hoyt, 4 was administered the 5 oath by the clerk of the 6 court.) QI 8 MR. GRAY: May we proceed, Your 9 Honor?
THE COURT: Please. QI
JOHN HOYT, the witness, called to testify by the Defense, having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. GRAY:
Q. Tell us your name, please, sir. I'm John Hoyt.
Q. What is your business or profession, Mr. Hoyt?
A. I'm the sheriff of San Augustine County, San Augustine, Texas.
Q. How long have you been sheriff up there, sir?
A. Since November, 1972.
Q. What did you do before you ot elected sheriff?
A. I was investigator for a law firm. I was
Q. Texas Ranger, Liquor Control Board agent and deputy sheriff. All right.
Q. You have been in law enforcement a pretty good while; is that right?
A. Yes, sir.
Q. a How long?
A. Approximately twenty, twenty-two or three years, something like that.
Q. How old a man are you now?
A. I'm forty-eight, sir.
Q. Let me ask you first, sheriff, whether or not you are the custodian of the jail records of San Augustine County?
A. Yes, sir.
Q. Does that include the booking records?
A. Yes, sir. Do those records indicate the time that an
Q. (IJ arrested person is booked into the jail?
A. Yes, sir.
Q. And when he's released by your jail?
A. Yes, sir.
Q. Does it also indicate when he is checked out from the jail for any purpose whatsoever?
A. Yes, sir.
Q. Did you in response to my subpoena bring those records with you?
A. Yes, sir.
Q. Do you have them with you?
A. Yes, sir.
Q. I take it these records are kept in the regular course of your duties as sheriff of San Augustine County?
A. That's correct, sir.
Q. And all the entries indicated on this card were true and correct at the time they were made?
A. Yes, sir.
MR. GRAY: May we have this marked, please as Defendant's Exhibit No. 1 for identification purposes.
(Defendant's Exhibit No. l was marked for identification purposes by the court reporter.)
Q. (By Mr. Gray) Are these all the records you have from the jail, sir?
A. Yes, sir. That's my jail record that I keep on each prisoner that comes in and goes out. Are you telling me that you do not have any records in the jail showing when a prisoner is booked into the jail?
A. Well, sir, I think you will note that this shows that almost in its entirety.
Q. Does this purport to be an arrest record? That's not a booking record in the jail, is it? Isn't that a separate and distinct record that's kept and required to be kept by every jailer in the State of Texas?
A. Well, sir, we're a small country county.
Q. Are you saying the law doesn't apply to a small country county?
MR. VANCE: Your Honor, that's argumentative. I object to ill
THE COURT: Sustained.
A. (By the Witness) Well, sir, we do the best all we can. We don't have elaborate setup like lll metropolitan areas. We are a poverty county.
Q. (By Mr. Gray) Have you ever looked at the booking records down here in Harris County?
MR. VANCE: Well, Your Honor, it's immaterial whether he has looked at other booking records.
THE COURT: Sustained.
MR. GRAY: We want to show by this line of questioning that these records are not elaborate. All they have is a book.
MR. VANCE: Well, the records speak for themselves, Your Honor, if they are introduced.
THE COURT: Sustained.
Q. (By Mr. Gray) When was Elmer Wayne Henley turned over to your custody, Sheriff P.oyt?
A. Well, sir, we met that afternoon.
Q. Where did you meet this young man?
A. At 5:30.
Q. Where did you meet him?
A. At what we call the lon~ bridge between Zavala and Broaddus, Texas, on Lake Sam Rayburn,
Q. Where is this, out under an oak tree or where?
A. Well, sir, there are a lot of trees, pine trees, oak trees, a lot of water, too.
Q. Right. Well, whereabouts did you meet this man?
A. Well, sir, we met there at the bridge coming into my county.
Q. Who did you meet there?
A. I met some officers from Pasadena and some from Houston, the sheriff from Lufkin and a couple of Texas Rangers.
Q. Give me the names of all those officers, please, sir.
A. Well, sir, I can give you the names of some of them. I don't think I could give it all without going back of course and getting my records, additional reports.
Q. Do you have those additional reports with you?
A. No, sir. I have got so many it would take two suitcases to really bring everything I have got.
Q. How long would it take you to et those records together and bring them down here in response to our subpoena, Sheriff Hoyt?
A. Well, sir, I brought I have most of my stuff I fix up and send to my district attorney. And he has access to more than I have. furnished him everything possible in the cases.
Q. Give me the names of officers that you recall.
A. Sheriff Pete McBride of Angelina County.
Q. All right.
A. Texas Ranger Charles Neel, Lufkin, and N. W. Clark, Texas Rangers stationed in San Augustine.
Q. What's his name?
A. N. W. Clark.
Q. All right.
A. Two detectives I don't recall their names offhand from Pasadena. I seen the gentlemen yesterday out in the hall.
Q. You don't recall their names?
A. No, sir, not right offhand.
Q. Well, let me see here. Was one of them a Lieutenant Goad?
A. No, sir. I don't believe it was a lieutenant.
Q. Detective Lawrence?
A. I believe that's correct,
Q. And Detective Mullican?
A. Yes, sir.
Q. You believe it was Lawrence and Mullican?
A. I believe so, yes, sir.
Q. All right. At any rate, you saw them here outside the courtroom?
A. Yesterday, yes, sir.
Q. All right. Who else, sir?
A. I believe there were two or three from Lieutenant Porter's homicide office here in Houston P.D. I don't exactly recall their names. Like I said, there were so many people, but I know there were two, possible three from Houston homicide. Two or three Houston officers.
Q. Were there any other Pasadena officers other than Mullican and Lawrence?
A. Not to my knowledge, sir, from Pasadena.
Q. Any other Texas Rangers other than Neel and Clark?
A. No, sir, not that I know of.
Q. And three, were these detectives from the homicide division of the Houston Police Department?
A. Yes, sir.
Q. But Lieutenant Porter wasn't there, was he?
A. No, sir.
Q. And you don't recall the names of those detectives?
A. No, sir.
Q. Any other law enforcement officers there?
A. Yes, sir. There was some of my deputies there.
Q. How many?
A. Richard Davis I believe, who is a colored deputy I have.
Q. A black deputy?
A. Yes, sir. And Mr. Charles Martin, Robert Mccroskey and
Q. Who?
A. two Highway Patrolmen.
Q. What were their names?
A. Yes, sir.
Q. Where are they stationed?
A. Stationed in San Augustine.
Q. San Augustine?
A. /1. Yes, sir.
Q. All right. Anybody else that you can recall?
A. A lot of the news media, you know, lots of those people.
Q. They all met there at the bridge, too, huh?
A. Well, we started at the bridge, it looked like QI there was several carloads there when I met them at the bridge.
Q. Several carloads of news people?
A. There were, along with the other officers from Houston and Pasadena when I met them there, yes, sir.
Q. Do you recall any of the names of those folks?
A. Well, it was one I remember in particular from San Augustine, was Sam Malone, publisher of the San Augustine Rambler.
Q. San Augustine Rambler?
A. Yes, sir.
Q. All right. Who else?
A. At that particular time, that's the only one I think I can call his name. Later, a man I know here with the news media, Mr. Bob Wolfe, came into the scene with some more in a helicopter.
Q. There was a bunch of them there, right?
A. Yes, sir.
Q. Any other law officers around?
A. I'm sure perhaps there were. I don't recall. Just the ones I have told you,
Q. About how many more were there whose names you can't recall?
A. I wouldn't say there were many more.
Q. Two or three, five, ten?
A. I have no idea, you know, a lot of spectators, news people.
Q. Spectators. Where did these spectators come from? Did they live around the bridge there?
A. I often wonder myself, sir, where they come from at these scenes.
Q. Anyway, a bunch of them showed up, huh?
A. Yes, sir. Who had custody of Elmer Wayne Henley at that? time?
A. The Pasadena officers. All right. Now, that's Mullican and Lawrence? I believe that is correct,
Q. Was he in a police car with them?
A. Yes, sir.
Q. Was David Brooks there?
A. No, sir.
Q. Did he come before or after this, or did he come up there at all?
A. He hadn't been up there yet.
Q. Not yet?
A. No, sir.
Q. What time did you say this was?
A. 5:00, 5:30, perhaps in the afternoon.
Q. All r!ht. Did Lawrence or Mullican tell you what time ~r. Henley had been arrested?
A. No, sir, I don't believe.
Q. What date was this anyway that we are talking about?
A. It was the 9th of August.
Q. August the 9th?
A. Last year, yes, sir.
Q. August the 9th?
Q. Nobody told you what time he had been arrested?
A. No, sir. I don't think we discussed that.
Q. All right. After you had this big confrontation at the bridge, did you take him to San Augustine and book him into the jailhouse?
A. No. He kind of took us on a wild goose chase. for a few minutes.
Q. You mean he got away from you or what?
A. No. But he took us the wrong way from where the bodies was.
Q. So then the answer is: You didn't take him and book him in the jail; is that correct?
A. He told me he was going to take me and show me some bodies. Yes, sir.
Q. But the answer to my question is that you did not take him and book him into the jail when you took custody of him at the bridge; is that true or false?
A. I didn't book him in the first time I seen him, if that's what you are referring to. So the answer is: No, you didn't; is that I didn't book him in at that time, no, sir.
Q. When did you book him into the jail?
A. Oh, I'd say approximately 9:00 o'clock that night. That's 9:00 p.m.
Q. on August the 9th?
A. Yes, sir.
Q. Is there anything on that card there that indicates when he was booked into the jail?
A. I see he was released. I don't see what time it says he was booked in.
Q. Do you have any little pieces of paper up there at the jail that would show when he was booked in?
A. No, sir, but I think it was about fifty or sixty news media that you could subpoena if you'd like that could tell you what time he was booked in. CII
Q. Well, you understand under the Texas law, the news media doesn't have the duty of keeping CII jail records, don't you?
A. That's right, sir. But I find them to be pretty reliable people.
Q. So you don't have any records that show when you actually booked this young man into the jail?
A. I brought the record I have, sir.
Q. And that's the only record you have?
A. Yes, sir.
Q. And it's your best recollection that this occurred at 9:00 p.m. on August the 9th?
A. Yes, sir.
Q. Now, let's go back to the bridge a minute where all these policemen were, were any of those officers armed?
A. I presume they were. I didn't look at them that close.
Q. Well, were you armed?
A. Yes, sir. I'm always when I'm out.
Q. Were your deputies armed?
A. I hope they were.
Q. You don't know whether they were or not?
A. I know this, they would get fired if they were not.
Q. Sir?
A. I presume they were. They; et fired 1f they
Q. All right. You didn't notice whether any of the other policemen had any arms or not, huh?
A. No, sir. I didn't.
Q. Has it been your experience that a bunch of policemen show up on a case like this without being armed?
MR. LAMBRIGI-: T: Your Honor, we are going to object to this line of questioning. I don't have any idea what this has to do with the motion that's before the Court. TEE COURT:
MR. GRAY: It goes to the totality of the circumstances, Your Honor.
MR. GRAY: Whether his will was overborn by the police officers.
THE COURT:
MR. GRAY: Thank you, Your Honor.
Q. (By Mr. Gray) Sir?
A. Yes, sir. ill QI
Q. Could you answer that last question?
A. Would you repeat it, please, sir? lll
MR. GRAY: Would you read the question back, please? lll
THE COURT REPORTER: Question: Has it been your experience that a QI bunch of policemen show up on a case like this without being armed?"
A. (By the Witness) I don't ever recall working a case like this. I don't understand your question, sir.
Q. (By Mr. Gray) Well, let's say a murder case then, officer, just make it as simple as possible.
A. Oh, we usually I don't know what you mean armed, but we usually have side arms. Well, that's armed, isn't it? Isn't a pistol an arm?
A. Well, up there at East Texas, we wear them all the time. Like I said, I don't know what a big city does. We are a little, old country county. We have a different part of the world than you have down here, sir.
Q. Yes, sir. Well, I am from East Texas myself.
A. Pretty ood country, isn't it?
Q. Fine, fine. All right. Then all you can tell us under oath then is that all these policemen from East Texas were probably armed or were armed?
A. They usually are.
Q. You don't know about these city slickers that brought this prisoner up there?
A. They usually are, sir.
Q. Who is the district attorney up there?
A. Mr. Bill Martin.
Q. Was Mr. Bill Martin present when all this occurred?
A. No, sir.
Q. Who is the county attorney?
A. Mr. James Doherty.
Q. Was he present?
A. He was later that evening. He wasn't there
Q. How much later?
A. there at the particular time. He met us down at the jail.
Q. What time?
A. Oh, I'd say probably a quarter 8:50, quarter t111 9:00 or something like that,
Q. What did you say his name was?
A. QI
A. James Doherty.
Q. And he is the county attorney, right?
A. QI
A. Yes, sir.
Q. Had you had any discussion with the county attorney or the district attorney before Elmer Wayne Henley was turned over to you by the QI Pasadena police?
A. No, sir.
Q. You had no discussion with any of the State's lawyers then till 8:¼5; is that right?
A. I believe that's correct, sir.
Q. And you had a discussion with the county attorney at that time?
A. Yes, sir.
Q. Did you have a J.P. or a Justice of the Peace up there anywhere?
A. Well, we have a couple, but at that time I wasn't able to et ahold of one. And he came in later that night.
Q. What time did he come in?
A. I don't recall, sir.
Q. What's his name?
A. C. A. Renfro.
Q. R-e-n-f-r-o?
A. (.Nodding head.)
Q. What precinct?
A. Precinct one, sir.
Q. How come you couldn't get ahold of him earlier?
A. I wonder the same thing a lot. I need him some time and he is out moving a house or something. You know, he is pretty hard to find.
Q. Moving a house?
A. He moves houses, yes, sir, on the side.
Q. Well, did you make any effort to get ahold of him?
A. Yes, sir. What did you do? Did you find out where he was moving a house and called out there or send somebody out?
A. We called his house on a number of occasions and finally went out there and, of course, his wife didn't know where he was, but he came in;
Q. And this was what time?
A. Oh, I don't recall, that n1ht. e couldn't get ahold of him till late.
Q. Was it ll:00 o'clock?
A. I'd say we didn't probably et ahold of him till midnight, something like that. I don't remember just exactly what time.
Q. About midnight on August the 9t6h?
A. Something like that or maybe 11:00 or 1l:30. It was after we had booked Mr. Henley in. All right.
Q. It was after 11:00 o'clock probably?
A. Probably, something like that, yes,
Q. Did he come down to the jail?
A. Yes, sir. He came down to the jail. What did he do when he got down there? The county attorney had drawn up some complaints, and we filed them with him against Mr. Henley.
Q. All right. What did he do? What did the Justice of the Peace Renfro do?
A. He said he would be back there the next morning at 5:30. All right. Did he ever see Elmer Wayne Henley that night? le did the next morning before daylight.
Q. Before daylight?
A. Yes, sir.
Q. What time?
A. 5:50 that morning, on the morning of the lOth.
Q. What did he do then?
A. He "arranged" Mr. Henley. I mean, Elmer Wayne Henley.
Q. How did he go about "arranging" him? QI
A. Well, he give him his warning, so forth.
Q. Were you present when that occurred?
A. QI
A. Yes, sir.
Q. This was 5:50 a.m. on August the 10th, right?
A. Yes, sir.
Q. All right. He "arranged" him, gave him his QI warning. What else?
A. He set his bond.
Q. What did he set the bond at?
A. $100,000 1n each case.
Q. How many cases?
A. I believe three, sir. Let me see. Yes, it was three cases. No, I beg your pardon, It was in four cases.
Q. Four cases?
A. Yes, sir.
Q. How long did this take?
A. It didn't take but a few minutes.
Q. Where did it occur?
A. I think there in the benches going to the jail, into my office or where my secretary's office? is. It wasn't in the J.P. office?
A. No, sir. We couldn't hardly get out there for all the people that was outside. There were QI masses of people there between my jail and QI the courthouse which is seventy-five to a hundred feet. Wasn't but one person there to be arraigned was there? That's right, but there was three or four QI thousand to be handled.
Q. Were these three or four thousand people milling around in the hallway there or around the courthouse?
A. They milled around all night everywhere around there.
Q. What were these, local citizens, or what were they? Who were they?
A. Some of them were local and some of them I had never seen before. I would say most of them I hadn't seen before. I don't know where they come from.
Q. Now, how long had this big crowd been gathered around the jail house there?
A. Well, it started when we come in that afternoon. It built up as the night went on.
Q. In other words, from the time that afternoon on the 9th before you booked Mr. Henley into the jail or after you booked him in the jail?
A. QI
A. During the night, from the time that we got back to the jail. There were lots and lots of people there when we drove back to the jail. QI It built up as the night went on, the crowd did.
Q. Were you concerned about that big crowd?
A. QI that the reason you didn't take this man to the J. P. 's office?
A. Anytime you have a big crowd in East Texas, you better be concerned.
Q. Well, what were you concerned about,
A. I was concerned about this Defendant's safety.
Q. All right. Did he see the people out there?
A. I'm sure he seen some of them. If he didn't, he could sure hear them.
Q. They were making a lot of noise?
A. Well, in my opinion, it would be a lot of noise. Some people may see it different.
Q. Well, let's have your opinion. In your opinion, were they making a lot of noise?
A. They were making a lot of noise.
Q. Threats?
A. Oh, (shaking head).
Q. What were they doing, just hollering?
A. What does a crowd usually do? QI
Q. I don't know. I am asking you, sir.
A. Well, you are from a big city. I am from the QI country. I don't get to see many crowds.
Q. Well, let me ask you what this crowd was doing that you just told us about.
A. It was just a crowd. QI
Q. Sir?
A. Milling around out there all night, knocking on the door, some kicking on the door wanting in and so forth.
Q. Knocking on what door?
A. My jail door.
Q. They were kicking on the doors, wanting in?
A. (Nodding head.)
Q. This was going on all night, right?
A. Yes, sir.
Q. At least from the time that the word got out that Henley was in your custody; is that right?
A. We got back and, like I said, there were a number of people there from there on throughout the night.
Q. All right. How many law officers did you have there to handle this crowd during the night and early morning?
A. Just two of us.
Q. You and one of your deputies?
A. No, sir. Me and
Q. State narcotic agent.
Q. Who was the State narcotic agent?
A. Mr. Charles Oliphint.
Q. Charles
A. O11phint.
Q. How did he get into the act?
A. I called him and asked him to stay there and operate the radio for me that night.
Q. Well, where did all this other crowd of police officers go? Did they check in the motel or what?
A. I imagine they did. I stayed down at the jail. I don't know where they went.
Q. They weren't concerned with this big crowd?
A. Well, you see I run the jail up there and they don't have any authority in my jail. Right. So the only officers present that ni ht were you and Officer Oliphint, Agent Oliphint; is that right?
A. I believe that's correct,
Q. Where were your deputies? Did they go home and go to sleep?
A. I sent them home where they could get up early the next morning, get another start.
Q. Do you live at the jail? du
A. No, sir. I live twelve miles out at the country. I stay in the jail some time. I have bunks back in my office.
Q. You stayed there on this particular occasion?
A. Yes.
Q. Do you usually stay there when you have a prisoner?
A. I do if I have a problem of any type I think is serious.
Q. You figured you had a serious problem this evening?
A. With this case, I did, sir.
Q. Yes, and the crowd?
A. Yes, sir.
Q. Who was taking the telephone calls, if you had any telephone calls, that evening?
A. I took them.
Q. Did you receive a telephone call any time that evening from Mrs. Henley?
A. Not to my knowledge. I don't recall getting one from
Q. Mrs. Henley.
Q. All right. Now, we are talking about the niht of Au; ust the l0th, aren't we?
A. No, sir, the 9th. QI
Q. August the 9th? QI
A. Yes, sir.
Q. You don't recall receiving a telephone call QI from Mrs. Henley?
A. Not from
Q. Mrs. Henley, no, sir, I don't.
Q. Are you saying you didn't receive such a call QI or you just don't remember?
A. I am going to say I didn't receive a call from any lady stating that she was
Q. Mrs. Henley.
Q. All right. Did you receive a call from some fellow that represented himself to be a lawyer?
A. Yes, sir.
Q. What was his name?
A. It's an odd name. At least it's odd to us in East Texas. I don't recall. I heard it yesterday out here in the hall.
Q. Is that Mr. Plotkin?
A. Yes, sir. That's the name.
Q. That's not an East Texas name?
A. I said it's odd to us in East Texas. No, we got Smith and Adams and Jones.
Q. Jones, right. Hoy ts?
A. Yeah, Hoyts.
Q. What time did you receive this call from Mr. Plotkin?
A. Well, sir, I received two from him.
Q. What time was the first one?
A. ti,
A. Around ll:00 o'clock.
Q. Was that p.m., I presume?
A. Yes, sir.
Q. On the 9th?
A. QI
A. Yes, sir.
Q. Tell us what conversation you had with this fellow.
A. He wanted to speak to Mr. Henley.
Q. What did you tell him?
A. I told him he was asleep and that I had him upstairs and I had a number of prisoners up there, that I couldn't let him come down just to use the telephone.
Q. What time had you tucked Elmer Wayne Henley into bed that evening?
A. I would say about a quarter till 11:00, maybe 10:30, a quarter till 11:00. I am going to say somewhere in there.
Q. How many other people were in the jail at that time?
A. Oh, I'd say probably six or eight.
Q. You didn't want to disturb them; is that what? you said?
A. I don't like to disturb my prisoners after they go to sleep. Did Mr. Plotkin tell you why he wanted to talk to Mr.
Q. Henley?
A. No, sir. He didn't tell me why he wanted to talk to him.
Q. Just tell us what he said and what you said as well as you can remember.
A. He told me he was an Attorney Plotkin and that
Q. Mrs. Henley had wanted him to talk to her son, Mr. Henley, wanted to know if I would bring him down, let him talk to him. That was the first conversation.
Q. This occurred about 11:00 p.m.?
A. Yes, sir.
Q. On the 9th?
A. Yes, sir. And you told him that you couldn't wake Mr.
Q. Henley up or words to that effect?
A. Something to that effect, yes, sir.
Q. And you wouldn't let him talk to him?
A. d A. Wouldn't be wouldn't let him talk to him; just didn't want to wake the man up.
Q. He didn't talk to him, did he?
A. No, sir.
Q. So you didn't let him, did you?
A. Well, I am not running
Q. Holiday Inn. I don't run room service. I don't have any manpower.
Q. All right. So at any rate, the answer is you did not let him talk to Mr. Henley?
A. No, sir. QI
Q. All right. When did you get the next call?
A. About ten minutes till 2:00 that night, which would have been on the 10th.
Q. Ten minutes t111 2:002
A. Yes, sir.
Q. That's a.m. on the 10th?
A. Yes, sir.
Q. Tell us about that conversation.
A. He wanted to know if he came up there if he could see him. And I said, 'hat time? said, "Well, I am going to leave now." said, "Well, you can see him at 6: 00 o'clock." He said, "Well, I am on my way." All right. You agreed to let him see Henley at 6:00 a.m.?
A. That's correct, sir, if he was there at 6:00.
Q. Did he show up at 6:00?
A. No, sir. He never did show up.
Q. Were you at the jail at 6:00?
A. QI
A. Yes, sir.
Q. What time did you leave the jail that morning?
A. QI
A. I believe about ten after 6:00.
Q. Who left there with you?
A. About the same officers that I named earlier for you, sir. QI Have you got anything on your booking record there to show what time you left the jail, sheriff?
A. I showed "Released back to Pasadena at 6:10 a.m." Of course, that was as we went out, left the jail.
Q. Now, tell me what that means, "Released back to Pasadena"?
A. That's when I took him out of my jail and put him back in their car in my driveway and we left and returned to the scene on Rayburn Lake.
Q. And what was the reason for turning his custody over to the Pasadena officers in San Augustine County?
A. Well, I don't see what difference it is which car you ride in. I don't understand. I don't understand exactly what you mean, Well, let me ask you this: You continued with some sort of investigation in San Augustine County that morning, didn't you?
A. Yes, sir.
Q. Now, tell me why you turned custody of this young man over to the Pasadena officers when you were still working on your investigation in San Augustine County. I didn't say I turned him I said I let him over to them and put him in their car and returned to the scene just like we left the evening before. What did you say on your card there you read to me, sir?
A. I said, "Released back to Pasadena in their
Q. Released back to Pasadena?
A. Yes, sir.
Q. Nothin~ on there about in their car, is there?
A. No, sir, but that's the way it was. All right.
Q. But when you released him back to Pasadena, he didn't go back to Pasadena, he?
A. I don't know. We went back to Rayburn Lake when he left my
Q. How long did you stay out at Rayburn Lake?
A. Till about 9:00 o'clock that mornin~.
Q. So when he was released to Pasadena at 6:10, all ill he didn't go to Pasadena at that time, did he? He didn't leave as far as you know till? after 9:00 o'clock?
A. That's right. He left 9:00 or thereabout. How long was it after Mr. Henley was "arranged" by the J. P. that you left the jail? Was it. immediately?
A. It was about twenty minutes,
Q. All right. I take it then you were waiting around for Mr. Plotkin to show up?
A. Yes, sir. He was supposed to be there at 6:00. I don't know what happened, but I told the lady deputy there that if he showed up to call me on the radio and that we'd meet him.
Q. All right. Now, when you went out to Lake Rayburn, all of these officers that you told us about before were present; is that correct? Or were any new additions made to the party or any of these leave that you recall?
A. I don't recall any leaving or any additional ones coming, sir.
Q. The same, about the same group?
A. I think, yes, sir.
Q. And at that time then Mr. Henley was in the custody of the two detectives from Pasadena?
A. Well, he was in their car. Of course, my car there were rangers behind him. He was in their car. I presume you would say he was in their custody.
Q. All right. Let me ask you this, sheriff: You took custody of Mr. Henley at the bridge; is that right?
A. No, sir. I didn't take custody of him at the bridge.
Q. When did you take custody of him?
A. When he came into my jail, I guess you'd say.
Q. Well, when you first met him, you met him at the bridge; is that right?
A. Yes, sir.
Q. And is there a river or something between San Augustine County and some other county at the county line?
A. It's about a mile bridge there, yes, sir, between Angelina and San Augustine County, sir.
Q. That's the county line?
A. That and the end of the lake, yes,
Q. Well, you didn't meet in the middle of the QI bridge?
A. No, sir. QI
Q. All right, sir. Was Mr. Henley under arrest at that time?
A. I don't know.
Q. Well, do you think maybe perhaps you could tell QI us whether or not he was being detained by the police officers?
A. I don't think he was being detained.
Q. Do you think he could have just gotten out of that car and walked on off and nobody would have said a word; is that right?
A. I don't know about that. At the time that I first met them, like I said, he was in
Q. Pasadena unit.
Q. Had some handcuffs on him, didn't he?
A. No, sir. I don't believe he had handcuffs on. He might have, but I don't believe he did. All right. And you just don't know whether or not he was being detained by all those police officers or not; is that your testimony, Sheriff Hoyt?
A. I don't know whether he was being detained or to what, you know, what
Q. Do you think he was free to leave there?
A. I don't know.
Q. Well, would you have let him leave?
A. At that time, I would. I didn't have anything to hold him on.
Q. All right. So you just don't know whether he he was being detained or not?
A. No, sir.
Q. You don't know whether he was under arrest or not?
A. No, sir.
Q. Now, about 9:00 p.m. when you took him into the jail, do you have an opinion then as to whether he was being detained or not?
A. He was.
Q. At that time?
A. Yes, sir.
Q. How about 8:/5 p.m.? Was he being detained then?
A. Yes, sir.
Q. 7:00 o'clock?
A. No, sir.
Q. 7:30?
A. Around pretty close to it, yes,
Q. And up to that time, you would have let him go on his way if he'd said he wanted to leave?
A. I wouldn't have had any reason to hold him. All right. And then I take it the next morning when you went out to the lake he was being detained at that time, also?
A. Yes, sir. And he was under arrest? Yes, sir. And what time did you say these complaints were filed by the county attorney with the Justice of the Peace?
A. We filed them some time during the night. don't recall just the exact hour.
Q. Was it on the 9th or the 10th?
A. They would have been filed I am sure on the 9th or thereabout. Like I said, we'd have to get the judge's records. I mean I don't know anything about his records. It would show.
Q. But it's your recollection that this occurred on the evening of August the 9th when the complaint was filed or these complaints were filed? fl.. I believe, yes, sir, on August the 9th.
Q. Who filed the complaints?
A. I did, sir.
Q. Do you have any recollection as to what time this occurred?
A. I show here, sir, on the 9th.
Q. What time?
A. I don't recall just the exact time. Like I Ol said, we were in pretty much of a problem of trying to keep people, like I said, out of my jail and so forth. All right. When did you first inform Mr.
Q. Henley if you did, that you had filed complaints against him?
A. The next morning when I served him breakfast.
Q. What time was breakfast?
A. I think breakfast was about 5:15, 5:20, something like that.
Q. 5:15 or 5:20?
A. Something in that line, yes,
Q. That's a.m., I presume?
A. Yes, sir.
Q. What did you serve up there in that jail for breakfast on this particular morning?
A. We give them a choice. We ive them a choice of ham and eggs and bacon and sausage or if they don't have any at the time, we let them have hot cakes. All right. Now, you said you weren't running any Holiday Inn. Did you furnish any meal for Mr.
Q. Henley on the night of August the 9th after you got him back to the jail at 9:00 o'clock and finally decided that maybe he was in your custody?
A. I offered to get him anything he wanted. said he didn't want anything to eat when he got back, but some coffee, was all he wanted.
Q. All right. So he didn't have anything to eat that evening then?
A. He had the opportunity. He just didn't want anything he said. My question is: He didn't have anything to eat that evening. Not he might have had a sandwich or somethin, I don't recall, coming in from Broaddus, but in the jail, I don't recall serving him a meal.
Q. D1d you have an occasion to call a doctor to come in and see him?
A. Yes, sir.
Q. What is the doctor's name?
A. Doctor Curtis Haley, H-a-l-e-y, I believe.
Q. What time did you call Dr. Ealey?
A. I would say about 9:30.
Q. What kind of doctor is he?
A. lle's an M.D.
Q. M.D.?
A. Yes, sir.
Q. You called him about 9:30. That was shortly after you got back to the jail?
A. Yes, sir.
Q. On the 9th?
A. Yes, sir.
Q. What was the reason for calling Dr. Haley?
A. Mr. Henley told me he'd like to have a doctor.
Q. All right. Did he tell you why he wanted a doctor? No, sir. I don't think he told me. He just told me he wanted a doctor.
Q. All right. I don't believe the Holiday Inn would furnish a doctor?
A. Well,
Q. Was he displaying any symptoms of any kind of ailments, or he just said he wanted a doctor and you sent out and got one?
A. /1.. I always do, yes, sir.
Q. All right. Did Dr. Haley come to see him?
Q. Yes, sir. a In the jail?
A. Yes, sir, not in the jail, down in my office; same thing, in the building, yes, sir.
Q. Right in the jail building?
A. Yes, sir.
Q. All right. How long did Dr. Haley examine this man?
A. Oh, I'd say he stayed there probably thirty minutes or an hour. I don't recall,
Q. Did he make some sort of examination?
A. Yes, sir.
Q. Were you present?
A. Yes, sir, some of the time. I wasn't present all of the time.
Q. Did he take any sort of history of the ailments or complaint?
A. He took his blood pressure. He listened to his heart. He looked at his eyes, his mouth, things like that. And he talked to him at length. Like I said, I wasn't there all the time.
Q. Did he ask him any questions about his background, what led up to this particular complaint that he was having?
A. Oh, you know, I don't remember, like I said, in detail what the doctor talked to him about, but I know he asked him what his problem was and where he was from, stuff like this.
Q. Did the doctor make any notes while he was talking to him?
A. I think he did. I don't recall exactly.
Q. Did he have any kind of recording equipment, or did he just write it down?
A. If he did, I didn't notice it,
Q. Did you have any available at that time?
A. I probably did, but I didn't use it.
Q. Did you use it?
A. No, sir. I didn't use any type of recorder.
Q. Did Dr. Haley prescribe any medication?
A. lie left three little bitty pills.
Q. What color?
A. They were green, looked like little BBs.
Q. Three little green BBs. Did he tell you what they were for?
details of these shocking and frightful crimes available to news media, after which venue was changed.
January 1974 to June 30, 1974 Trans fer of trial to San Antonio and vre-trial proceedings in Bexar County.
This is the period which appellant now complains that the court kept from further publicity expansion by postvoning until after trial some of appellant's ancillary hearings.)
9 1994 WulyedG, Trial Assuming appellant's selection of news stories his exhibits is representative, it shows that, had Judge not used his discretionary power to so grouv ancillary as to prevent the pre-trial snowballing effect of news such coverage, according to appellant's theory, could prevented trial anywhere, in the reasonably foreseeable
TOTAL PAGES OF STORIES IN APPELLANT'S PAGES TIME PERIOD BRIEF BY PAGE NUMBERS IN HIS BRIEF
2. Jan. 135 197 fest 23 Houston Jan. 31, 1974 Feb. 19, 1974 to 17 San Antonio June 30, 1974 ee JULy eos to 9 Jury selection eal July 8, 1974 ee 3 July 9, 1974 to 11 (Trial) July 16, 1974 In his excerpts from television broadcasts pages 75 84 of his brief) appellant includes only two very brief during the time period from January 13, 1974 to January 1974, when the multitude of facts about the murders was available to news media from the defense witnesses at motion to suppress. These, however, are quite They are at page 77 of his brief as January 23, 1974, Newswatch at 10:00 Defense lawyers in trial of alleged sex-ring killer Elmer Wayne Henly (sic) have called for Houston newsmen to testify
January 30, 1974, Newswatch at 10:00 District Judge William Hatten today ordered the trial of accused mass murder (sic) Elmer Wayne Henley moved from Houston of excessive pre-trial publicity The 17 year old Henley is charged with six of 27 sex-torture murders of young men over year-old (sic) Elmer Wayne Henley, 18-year old David Owen Brooks, and 33-year old Dean Arnold Corll. Henley and Brooks have been charged in connection with the sadistic sex murders of the 27 boys and led volice to the bodies. At page 85 of his brief appellant shows the examples of radio coverage, by months:
Copied from holdings of Texas State Archives
MONTH August, 1973 September, 1973 October, 1973 November, 1973 December, 1973 January, 1974 February, 1974 March, 1974 April, 1974 May, 1974 June, 1974 July, 1974 flu of pre-trial coverage is seen to Again, the pre-trial handling of matters ancillary concurrent with trial, handled thus at the urging of the the be seen that the perfectly legal It can easily pre-trial ancillary procedures was used by the defense of with a result of working a delay in triads Houston change of venue, and wisdom required together with a Dial, judge of the District Court, Judge Preston in Bexar County, find ways to prevent Judicial District recurrance of this effect in Bexar the court did by allowing full development This matters, but not allowing all of them all ancillary trial, eee TE Copied from holdings of Texas State Archives FREJUDICE NOL onhUwn Appellant takes the position, without expressly so that the news coverage of the crimes here involved is se prejudicial.
There is not, in the items selected by pages 23 to 84 of his brief, a single editorial appellant.
The only editorial presented is at page 35 of ant's brief, and primarily complains of the removal of venue to Bexar County. There is no mention of appellant cept Elmer a Henley, a defendant in the Houston murder case, will be tried The news stories are as calmly informative as is ble when the crimes themselves are blood chilling in nature.
Primarily they deal with announcement of hearings, and reports of evidence there These included the bereaved parents in the audience the Houston hearing 32 of appellant's brief). There statements that Peaicy is charged in six of the killings, the exculpatory note that they were allegedly inspired by his mentor, Dean Corll News, nantly SO, 1974, OF Be ppellant 43 brief).
There are quotations in April 5 to 8, 1974, pp. 39-40 of appellant's brief) of announcement by lawyers of attempts to further delay the There is coverage of the removal of additional Copied from holdings of Texas State Archives to San Antonio, with further stories on his lawyers' ments pages 42-43 of appellant's There is coverage on appointment of local counsel aid Henley, coupled by the News, May 31, 1974, 45 appellant's brief) with announcement of acquittal of father on an assault to murder The News, on July 1, 1974, wrote 46 of brief):
Mrs. Henley beamed at her own 18-year-old, Elmer Wayne Henley, as he took a seat in the COUrtEoOom.
Certainly, this is not an indication of a population with a prejudice against the defendant The mere publishing of informative news stories as these, simply does not per se require a change of See Bridges State, 471 827, decided in on the diac Cf Rigeaa. Loufelana, 373 Uses. 723, 83 1623, 14 Ed.2d 543, and Pamplin et al Mason, 9364 F.2d There were newspaper clippings before the court in Bridges case, which was an L.S.D. sales case. These depicted undercover anti-narcotics activities of an 22-year old housewife, an Amarillo officer, who posed high school student to ferred out narcotics violations.
drew a favorable press, and the defendant in that.
was both mentioned and pictured in some of these There, as here, the Court held the question of venue in ance during the jury Copied from holdings of Texas State Archives There was held no error in overruling the motion change venue.
In Enriquez State, 429 141, also in the light of recent federal cases, the Court of Appeals had, as here, a record of the voir dire, which was 1500 pages long. Here it extends from 787 to
Enriquez was a capital case, with separate juror dire. In the case at bar, no death penalty was possible, the court nevertheless granted the defense request for jury voir dire.
In Enriquez the Court states, 429 141 at Though a number of veniremen were because they stated at one stage of their examination that they had an opinion as to appellant's guilt, a careful examination of the approximately 1500 pages relating to the jury selection reveals that the trial court in this case exercised extreme caution and excused many of the venire, who under and accepted practice whould have been because their opinions were uncertainty formed and the prospective jurors stated that they felt they could set aside any opinions they might have formed and try the case purely the evidence adduced from the witness In the case at bar, appellant states at vage 85 his brief, 64 out of 124 prospective jurors questioned excused because they had formed an opinion as to the guilt innocence of the defendant.
Some answers were, as appellant details at page 86 his brief, sufficiently vague that there could be a question as to their applicability.
These figures of the defense, as far as they go, Copied from holdings of Texas State Archives schematically correct. But they stop short of the facts.
One juror, Tony De La Zerda, was because he had already decided appellant not guilty
Very few of the venirepersons excluded said whether they had reached a conclusion of guilt or one of innocence. A summary of voir dire, which follows, shows pages of the record applicable as to each venireperson questioned.
Where the venirepersons answer was clear, the tendency was for prompt excusal, Felipe Rodriguez 1366).
Virtually no time was spent by the in attempts to rehabilitate venirepersons.
This is shown by the fact that only six times, out of 124 persons voir dired, was there reexamination by the State, after the defense had finished its examination.
Of the six venirepersons re-examined by the two, Claude Guerro 849, and Zelma Lee 1708, 1727) were excused. The other four venirepersons are Walton Theiss 824, 844), Myrtle Garner
In none of these re-examinations, the record pages above listed, was there any showing of prejudice of from pre-trial publicity.
Examples of the lack of community prejudice appellant, shown by voir dire, include the Rudolph Rivera 1630) He had read little about the case. He is a sports fan and reads sports news 1646).
Mrs. Fredarica Parra She simply did not know the facts of the case at all 1657).
Copied from holdings of Texas State Archives Mrs. Zelma Lee Bailey 1708) Had opinion on the case. She was with economy ic proble ms, and not get paid while she served and excused by agreement on suggestion of defense counsel because of this hardship Justin A. Schleper 1729) He had read or heard "very slightly" about the case.
John Longoria 2146) He first said he had no opinion which would influence his decision 2146). Later, on questioning by the defense, he changed his position 2155-56). He was excused with no state effort made to rehabilitate him.
Here the more than 1400 pages of voir dire a San Antonio cross-section and it clearly is one without vindictiveness to appellant.
The case at bar is not such a case as Richardson State, 70 1003 at 1004, which was reversed.
the trial judge reserved his ruling on change of venue the jurors had been examined. There the opinion noted figures:
86 jurors appeared 5 excused by agreement 10 secured out of the 81 left 21 more summoned 13 of these disqualified because of opinions as guilt 1 more juror secured 5 more summoned all disqualified because of opinions as to guilt 5 more summoned 3 disqualified because of opinion as to guilt 1 more chosen In the Richardson case, practically all had heard case discussed, 68 had an opinion as to guilt, a number heard others condemn defendant; sentiment was against Copied from holdings of Texas State Archives and against the offense he was charged with having (murder).
In Richardson the offense murder of defendant's was committed January 1, 1934. The indictment was January 4, 1934. Trial was January 15, 1934. And in the time, the case had wide publicity, with details of the in the county of its commission. It was uncontested sentiment against defendant was Those simply are not the circumstances here, there was a continuance and a change of venue from the of the crimes, on the court's own motion, and a lack of showing of bitterness.
Here, the comparable case is Pugh State, 186 2a 258 at 260, which was affirmed, after a review of dire proceedings.
There 100 veniremen were summoned, 56 were nine had conscientious scruples, 16 had formed an four were peremptorily challenged by the State, fifteen peremptorily challenged by the defense, twelve were for the jury.
In the case at bar, 32 persons had to be because peremptory Seeinee were not baken tne deeen
The appellant has the burden of showing PugGhhvempeate, 258, Jolley State, 363 269 teaches us this be prejudice other than a prejudice against the type of committed, Ward State, 427 876, 881, holds that Copied from holdings of Texas State Archives newspaper publicity alone does not estabiisn prejudice or quite a change of venue.
In the case at bar, appellant complains because the did not, in a pre-trial hearing, have a public rehash of previous pre-trial publicity.
What the court did, after it was too late: for more to make selection of a jury impossible, was to allow the to put on anything it wished in an effort to show there had a need for a change of venue to give the defendant a fair before an impartial jury.
Not a single compurgator was called by the Not a single witness testified as to any community against defendant. All that was proved was that there been day to day attention by news media to pre-trial ings, with factual stories informing the public as to what was happening, and that this total got bigger as the was delayed in favor of pre-trial ancillary Appellant takes the position throughout his that a pre-trial hearing is necessary on change of venue enable an appellate court to determine whether there has an abuse of discretion resulting in a deprivation of right to a fair trialby an impartial jury. See page 100 his brief. He claims the hearing at on motion new trial and bills of exception 3491) was merely curative see 104 of appellant's This was the chance the court had promised for defense to show by bill of exception any prejudice unlikely a fair trial by an impartial Copied from holdings of Texas State Archives It is only sensible, if it will not be likely to self defeat justice, for a change of venue hearing to be before trial, to avoid the waste of time and money if a chanae of venue is shown necessary. Here, it would have been ly an exercise in futility to cause the same kind of permeation of the new trial community, ie., Bexar which had occurred in the first, ie., Harris County.
it was only sensible to allow this proof after the trial over, aS was done by the wise trial The diligence with which appellant's counsel throughout makes it patent that proof of bitterness and dictiveness and other indicia of prejudice specially generally in the community, would have been shown if such dence had existed.
There are annotation on pre-trial publicity in cases as ground for change of venue at 10 1243 to and at ALR 17-148 supplemented at pages 3-16 of the pocket parts.) One case cited in the ALR annotation Handy" State, 138 541, which was a Texas death ty murder case.
The Handy case, 541 at points the fact that no two change of venue cases are alike and must be decided on its own It is respectfully submitted that under the facts the case at bar, where after the first burst of publicity over, the defense saw no need to change venue from the of the offense, and subsequent pre-trial proceedings in a continuance and change of venue, the trial court to Copied from holdings of Texas State Archives venue had been changed did the wise, fair and just thing when he:
Allowed separate voir dire of venirepersons,
Promptly excused all venirepersons who stated they had formed an opinion from hearsay or otherwise, which might influence their verdict as to guilt,
Postponed his ruling on change of venue until after the necessary 32 prospective jurors were
Overruled motion for change of venue after 32 venirepersons qualified as Aurea,
Offered to let hearsay evidence, to prejudice, be filed,
Promised ahead of time that a full of exception to show prejudice would allowed later,
Later did allow unlimited proof on question of change of venue as bill exception,
At public cost had more than 1400 pages of voir dire furnished to the record to show the appellate court the play by play selection.
For convenience of the court, a chart summarizing 1432 pages of voir dire in the record is here Copied from holdings of Texas State Archives
787-789 Antoinette Franklin Student) la 788-789 Elsie Martin Student) 790 Angela Martinez 791 Unidentified Juror Iwo small children parents out town 792 Helen Scheibach 820 Doris Sadesk 822 Bee Kitchens Ex. 824; 828; 840 Walton Theis No 848 Theodore Botkin Ex. 849; 864 Claude Guerrero Ex. No Yes eal (Confused by six cases) 865 Julie A. Carmody Ex. No Has biases no conclusion) 870-88 2 Debra A. Boyer No 890 George Kobel Ex. 891 James Vistuba Not a conclusion affected by it) ikel 8933905 Joy Stulz No Haven't kept up with it; too busy on new job Copied from holdings of Texas State Archives
VOIR DIRE SUMMARY, ASR A BIS
mm) GUNS clo Oo re Hla a 91653:9323935 Donald Atnip No He's innocent proven guilty") 9423;943;944 Patti Harrison Ex. No State offered to agree excuse her reason for change) In Houston a week when case broke) 949 Douglas Drury No Haven't kept up with very well) 074 Helen Mock rei Piss 994;996;1009 Evelia Garcia No Saw nothing in yesterday's or today's paper) 1017 La Verne Church Juan Castillo Sir, I find the defendant 1019 Geraldine Besecker 102031029 31030 Myrtle Garner No Read nothing about the case yesterday or today) Have not formed an opinion) Copied from holdings of Texas State Archives
RECORD NA eae Piel 3 SIC 8 BYSEe Se Bye aS Holz a Zlo laa res HIM 1048; 1069 Adolph Martinez (Will consider five ears) 1072;10843;1085 Myron Donnelly No Has not heard anything about the so-called facts of the case 1101 Rosa Belle Lamb 110231103 Harold Payne Excused by agreement because of employment 1104 Grace Nixon Yes who near Houston. I was there to read and see."
1105 Carole Phillips Ex. Yes Equivocal but State did not object to challenge) 1108; 1117;1120 Pearlie Stafford Defense challenges for cause. She can't sit in judgment and find guilty or not guilty) 112131128 Mrs. Berry Langford Ex.
From Houston challenge 11293114151142; Alfred Prinz 114031152 Saw something in August Read one article Sunday Just the no facts of case could consider 5 years/10 years also.
Copied from holdings of Texas State Archives
PAGE IN RECORD NAME is 2 BE ale QP HaAlTYS Holz a Zlo 9 jlngools ojo) vs) Ee aic alee ioe) 1155 Robert Miller Ex. Yes 1156 Johnnie Ochoa, Junior me Sif, Robert Guerrero lpigc anes NVnwnvamas Cer 1158 Maria Mendez EX.
159 Martin Lopez EX 1160 Joe Olveda Don't speak much Excused by 11613;1188;1189 Carol A. Reyna Gray challenge. Vance not stop with a answer) 1191 Elidorio Vasquez Past California experience. (Excused by agreement) 1193 Mary Ann NO 2203.12.35 Sam A. Mask No 1226 Did not follow it closely Does not recall facts vague-no discussion visits penitentiaries when called) 1246 Evelyn Geiger Janie Perez Ex. Joint challenge not consider punishment) Copied from holdings of Texas State Archives
PAGE IN 2 HoH mo DEP RECORD 2 ole Siae age ofS 2 Clara Balzen No
line 5-6;1280; Read nothing the 1287 Sunday TV Not ing that close tion. I can everything heard and read and listen to your witnesses." Publicity has not influenced 1301 Richard Goetz Martha I. Inglett No Born in Mexico, moved to San Antonion when she was 1 year old nothing at all on what she had read or heard 1332 Tony De La Zerda 1 Ex. Yes Conclusion that def.
is not guilty) Volunteered) (Excused by agreement) 1334 Valerie.F. Cumming excused by 1334 Santiago Tello, Ex. No Tiunior (Excused by agreement) Can't give minimum 5 years Copied from holdings of Texas State Archives
e2S tfal Sale el 3 8 als eS Gia 134131353 Dora A. Guerra Yes News stories did not press her) Opinion-news papers 1365 Charles Whitehead 1366 Felipe Rodriguez, Junior don't know, I can't tell you. I guess he's guilty." No attempt made to rehabilitate him State agrees to 1367 Maidee Cleveland 1368; 1380;1379 Herlinda O'Brien Yes Don't remember read headlines only) 1391314173;1402; Elva Hoffman No Yes 1404 in the past) Excuse by agreement not permitted) (Vance request denied) Read when it happened-not recently) Read Sunday that 500 jurors had been called up saw of 1419 3143231431; Rosemary Tull Going to A.Jr.College has a lot to read) Copied from holdings of Texas State Archives
2 elen Selig Be Zlo giBlo 9 lac als HIM aw 145231474 Helen Green No Believe innocent until proven guilty; have only heard State's side so far) 1490;1502-1504 Eusevio Gonzales No Yes Have seen TV, papers when it happened-did not see Sunday paper recently saw only that case was coming to San Antonio) desal 536 William Garretson Ex. Will not follow law alcohol or drugs in mitigation State challenges for cause 153931550-1551; Billie Rock No 153 2; 156987573 Read some news about the case got into the facts.
believe a whole lot of this stuff until I hear it first-hand. Defense challenged re ID of deceased Rehabilitated 1583 Edward HR. Green
I kind of lean to a con clusion") Only fact these crimes committedXNo facts case) 1628 Judith A. Varga Ex. Dr. or Miss Nice people, don't discuss such things) Copied from holdings of Texas State Archives
PAGE PAGE IN 7 ae NAME Bile mtSle 5 RECORD 5 Bic Qo Bole ola Zlo 09 lac alsa 1630 Rudolph Rivera No Sports fan read the sports) 1657 Fredarica Parra No Don't know facts of 1684 51696-7 John Joseph Hoog No Read headlines no lengthy articles) 1707 Christopher Tarnava, Ex. Junior 170831727 Zelma Lee Bailey Ex. not paid if absent, hardship 172931743-4 Justin A. Schleper Had read very slightly about the case) 759 Leonora Haenel Ex. Believed maximum sentence should be given if Defen.
proven guilt Filiberto Alvarado Ex. Copied from holdings of Texas State Archives
RECORD NAME my fs Ee ACCEP TED Bales Ble gale BIS HIN wW Lal 177331779 Richard Carillo Ex. No Some questions as to expecting defendant to testify (excused by agreement) 1781 Mrs. RE. Brotherman, Junior Over 65 claimed emp tion) 1782 Reverand Jesse Short Reynaldo Lopez No Yes 1800; 1808- No opinion from news 1809 stories Defense chall enge for cause news reports overruled 180931811 Lorena A. Holden Challenged by State 1 this could sway her) 181231814 Antonio Solis Ex.
(Excused by agreement) 181531826-7; Samuel Garza, Junior 1827-8 Originally had opinion defen. guilty, then thought A lot of things "I don't know" 1837 Jesse Hugdins Copied from holdings of Texas State Archives
PAGE IN RECORD NAME Bae i Bale olZaqgon SIF Elo oon 1840;1855-6 Annalee Wofford No Read some news accounts about a year ago-may have seen some TV a year ago Saw nothing last Sunday or Monday) 1881 Adeen McNiel She would find defendant guilty if told of drinking or narcotics) 1897 Nella Woods Ex. Excused agreement) 191031913 Gerald Martinez Could not consider five years. Challenged by defense) 191390915 7 Ann Robinson Ex. Mr. will use one of challenges."
1937 Vera Drumb Marshall Ex. Yes Spencer Kiesel Yes pare 1939 Paul Rangel Ex. "Some has" Copied from holdings of Texas State Archives SEE
BeSela ot iS rie. Bae" Bale fal BEI a oesae ola mm) aio 1941 Juan Tristan Ex. 1941 Alfred Roberts 1942 Walter Franklin ctartsoa Annette Marie Knaus Lucinda Sanchez aes Richard Ackermann No I don't know anything apoube dtc) 197131980 Francis Chichanowski No Work evenings Don't read paper very much) 1993 James Bell Yes 1994 Antonio Martinez, Ex. Junior Copied from holdings of Texas State Archives
aig gle 4 air Bloa Slo Lig oO qi DUIS oO HIN Gre SOIR 19977 Arthur Heber, Junior Ex.
1998; 2000-7 Jim Scott Jones No What she read is not clearly organized) Daisy Jane Alberthal Ex. No a Yes James Stedman Excused by agreement 2035; 2046 Jose Robledo No et seq. Had discussed case opinion as to defendant's 2060; 20693 Edward Schmidt No 2070; 2073 Read about case when it happened. Has discussed it;
some people expressed opin ion defendant was guilty;
venireperson did not. Would require State to carry burden of proof) 2087; 2093 Charles Stefano followed case closely. voLtree drinking frindof defendant's atty., Rudy Esquivel. (Excused by agreement) 2094 Juanita Mora Copied from holdings of Texas State Archives
aig BSE Zlo ojHaxu PoP 2095; 2105 Wihlis Jr. No Recalled reading nothing about the case previous Sunday) 2118; 2651; Walter Lozano No fo) 2130 Heard discussion of the case-does not believe what he reads or hears) Read nothing about case except maybe it happened) 2144 Mary Casillas Ex. 2145 Arthur Zunker 2146; 2156 John Longoria Defense challenge cause sustained) 24.57 Raymond Thies 2158 Jesus Reyes 2159 Sylvia Griffith Copied from holdings of Texas State Archives
PAGE IN RECORD NAME iS el Be paee Boe al Loe 2160; 2173 Atilano Limon Ex. No Vague answer as to effect if defendant does not testify. Challenge by defense sustained.)
2180 Anita Gonzales Ex. tes 2181; 2194 Louis Slusser lop) Read no papers for 2 1/2 weeks in 2218 Jim Scott Jones living with her) 2219 Motion for change of venue now denied.
Copied from holdings of Texas State Archives As appellant recognizes at page 131 of his brief, is no burden upon the state to show lack of prejudice when court does not sequester the jury. Blackwell
State, 469 581. There no showing of any prejudice. The trial court was careful to promptly curb any effort by news media to members of juror's families, and to make certain that effort was made to contact the jurors 2714 to
2888 to 2899), and he prohibited public by all lawyers in the case
Appellant's points of error twelve to fourteen, merit.
Likewise, appellant's complaint that a group of news media people were seated in a spare jury box in no way applicable Sheppard aaah Recently, in Murphy Florida, 95 SCt. 2031 at 2039-5 United States Supreme Court distinguished the group cases, including Sheppard, in each of which a state court viction was overturned because of a trial atmosphere corrupted by press coverage.
These cases, the court held, 95 SCt. 2031 at 2036, not be made to stand for the proposition that juror exposure news accounts of the crime with which he the is charged alone presumptively deprives the defendant due process."
A quite recent opinion by the United States Copied from holdings of Texas State Archives Court for Maryland, in Mandel, 19 Cr.L. 2034 at 2035, discusses the denial of a change of venue for several co-defendants in the trial of Maryland Governor Marvin and others indicted on mail-fraud and racketeering There the court noted that a motion for change venue is generally granted, if at all, only after an is made through voir dire to empanel an impartial Exception to this rule applies only where the publicity is inherently prejudicial, by measurement against that lrvin Dowd,). Louisiana, 373 723; Estes Texas, 381 US. 532 and Sheppard
384..US. 333, the opinion points The opinion also cites US. Abbott Laboratories, 505 F.2d 565, in which the fourth circuit held that though the publicity was prejudicial and inflammatory, court must first resort to voir dire before dismissing indictment, and expressed the position that voir dire can an effective protection against prejudicial The opinion also cites Chapin, 515 CA. Dist. of Col.), in which change of venue was President Nixon's appointments secretary in his trial making false statements in re dirty tricks strategy, as as Calley Here, between his careful protection of the his prohibition against lawyers discussing the Pade 774), and his providing a space for members of the press cameras) to be present, the court demonstrated wisdom balancing Sixth, Fourteenth, First Amend ment rights.
Copied from holdings of Texas State Archives note at 19 Cr.L. 4017, in re Nebraska Press Assn. Stuart set for argument this spring as No. 75-818 in the States Supreme Court. Also see 18 Cr. 2254) as balancing of such rights.
Appellant's first fifteen grounds of error are merit.
Appellant here complains that the court did not the entire jury panel all of the 500 called who had after appellant, with his back to the jury panel, was cuffed by deputies before he was taken out of the assembly jury room
The court specified that inquiry could be made of individual venirepersons on voir Appellant now, for the first time, complains this of no value for each juror who had not seen appellant handcuffs would then be told he wore He made no such complaint at time of trial
Further, appellant's counsel did make such inquiry time of voir dire, to several venirepersons, and none of had seen any handcuffs used, 840, Mr. Theis;
It is to be noted that here the deputies sought have the least possible attention to security measures certainly cannot be called unreasonable, in transporting defendant in a multi-murder The facts of this case are in contrast with those Copied from holdings of Texas State Archives
State, opinion of April 14, 1976, because, without explanation therefor, the defendant was brought into court daily in handcuffs, to be thus by the jury as the handcuffs were There simply is no showing here of the defendant appellant incorrectly asserts at page 1370 of his being paraded before the entire jury panel in handcuffs."
No error is shown. See Slaton State, 484 opinion by Presiding Judge Onion, stating that handcuffs be used if there is a good reason; Davis State, 505 800, upholding the use of handcuffs to transport a prisoner.
Further, when all evidence in this case is considered, is not conceivable that had appellant been in handcuffs, necessarily moving from one part of the courthouse to any prejudice could be shown. Thus it would be harmless if it were error. Ex Parte Slaton, 484 Appellant's point of error sixteen is without
REPLY TO POINTS OF SEVENTEEN TO TWENTY TWO
Appellant here makes six specific complaints as to dire. Pheee poiiite of error read as felipe appellant's brief):
The trial court committed reversible error in curtailing appellant's voir dire of Clara Balzan, and in denying his challenge for cause.
Copied from holdings of Texas State Archives
The trial court committed reversible error curtailing appellant's voir dire of juror Rosemary Tull, and in denying his for cause.
The trial court committed reversible error curtailing appellant's voir dire of Justin Schleper, and in denying his challenge for
The trial court committed reversible error denying appellant's challenge for cause of juror Walton Theis.
The trial court committed reversible error denying appellant's challenge for cause of Edward Green.
The trial court committed reversible error curtailing appellant's voir dire of juror Billie Rock, and in denying his challenge cause.
CLARA As to the curtailment of Clara Balzen, counsel had questioned her as to minimum punishment, of years, with this result 1290, lines Yes, ma'am. See, first, the Jury decides whether the defendant is guilty or innocent. And, let's say, in this hypothetical case, you had retired with your Jurors and you voted to find the defendant guilty of the offense of murder with malice aforethought. Then either side, after that, can put on further evidence, on the issue of punishment. And then the Jury again to determine the punishment to be assessed. Now, let's say that you have done all this, you have found the defendant guilty of the offense of murder with malice aforethought. My question is this: when you go back to the Jury Room, the second time, Copied from holdings of Texas State Archives you, if you thought the facts circumstances warranted it, assess minimum punishment of five A. If there were facts to warrant it.
I'm sorry. In my mind, I don't see that could make it so. But if there were, yes.oyEhen 1 comid consider Thereafter, appellant's counsel sought to get venireperson to state whether she would assess the punishment Lor six convictions CR. 1292, line to_R.
line 7, quoted at page 142 of appellant's
I'm not asking you about this case, ma'am.
I'm asking you about a hypothetical case where you found a hypothetical defendant guilty of the offense of murder with malice aforethought in six individual cases.
MR. GRAY: I haven't finished my question, yet, Your Honor. May I conclude my question?
THE COURT: Well, what you have said far is objectionable.
Kite Here the question obviously was objectionable there is no possible circumstance under which a jury give one punishment for six Whether or not to cumulate punishment simply is not function of the jury, the statute expressly making it within the discretion of the court, Art. 42.08 C.C.P.; Johnson State, 505.
Mrs. Rosemary Tull, in voir dire 1436 et seq) Copied from holdings of Texas State Archives clearly, when informed by the court of the burden of proof, presumption of innocence and right of the defense not testify, as follows 1437, lines THE COURT: The law is that presumed innocent.
THE COURT: And the State has the burden of establishing guilt to your satisfaction, beyond a reasonable doubt.
Your verdict should rest only on the evidence that you hear in the course of the trial.
THE COURT: And not be by anything extraneous to
THE COURT: Now, if those.instructions are given to you, can you follow of those?
eee Sere, eee el This venireperson at the outset stated she had conclusion established in her mind as to guilt or that would affect her verdict 1419, lines On examination by the defense she made it clear she had no firm opinion as to guilt 1434, line 25 to ieoom tine 6; 1436,-Llines 1. to 1436, Lines But as I understand it, though you you have sort of a tentative opinion he's probably a wit S-entirely possible; Iden't You don't have sufficient opinion ta. No, Not firm opinion. No:
Copied from holdings of Texas State Archives But you do have some Yes.
TO Se tae And do you feel that you could, this opinion that you have, at time, be an impartial Yes.
ray ray And do you feel that you could, with this opinion that you have, at this time, be an impartial juror?
And then, if a defendant in a criminal case or if a defendant did not put on any evidence to remove this opinion, you have now, you would find him guilty;
if would not change your present opinion if he didn't unless he put on some evidence?
WAN Maybe it's not a case of evidence that I would need, maybe a reason rather than evidence; in other words, is confusing?
THE COURT: Mrs. Tull MRS. TULL: What's the The Court here explained the State's burden of proof, the fact that the defense need not put on evidence. Defendant is pre sumed innocent, the limitation to evidence basis for a verdict and that she must be fluenced by nothing IPOS.ws Sea Then the court asked 1437, lines THE COURT: Now if those instructions are given to you, can you follow all of those?
Copied from holdings of Texas State Archives UMRS. TUG: Yes;
ese Thereafter, the defense questioned Mrs. Tull with result 1433, line 19to-R. 1439, line A Well, no. I don't think I mean to say that.
I meant to say that nothing can be completely forgotten from what you have already learned or heard is what I am basically saying.
And that goes for the opinion that you at this time about this case and about defendant?
A No. Not necessarily. Because my opinion that firm.
But you do have some tA Mes, serr.
And that opinion is that he is guilty?
MR. GRAY: We challenge, Your THE COURT: That will be Mr. Gray: Note our oie wits einen roe Thereafter, the defense made the following Re 1439.5 line 16 to line
Mrs. Tull, you will agree with me that opinion, whether it's a tentative opinion or a firm opinion is based on some sort of Pacis Vent Lt?
THE COURT: Sustained. Go something else, Mr. Gray. Your has been overruled in that area. Go Copied from holdings of Texas State Archives MR. GRAY: Note our exception, Your Honor. May we have her answer for a Bill of Exception?
THE COURT: You have her several times Patently, the court and the defense had questioned venireperson at length, had plainly found from her that had no opinion that would influence her verdict, that would confine her verdict to evidence she heard and that did not know as to appellant's guilt, but he might possibly be guilty.
Certainly, the defense is not entitled to jurors believe it is not possible that the defendant is guilty.
impartial jury which is required, Art. 1Sec. 10, Constitution, Vernon's Ann. Tex. Const., and numerous tions at note seven thereunder.
Justin Schleper stated promptly and simply that he consider assessing the minimum punishment of five years if he thought the facts and circumstances warranted that punishment 1748, line Thereafter, the following occurred 1749, line 19 Line 21):
Oe satother words, itis strictly up to jury. If they think the facts and circumstances warrant five years, they can assess five or ten or fifteen or Copied from holdings of Texas State Archives aA.
Do you feel, sir, that one of the basic fundamental purposes of punishment is the eventual rehabilitation of the offender so he can be returned to society and be a productive member of that society?
Well, if a person was proven guilty, beyond any doubt and had committed numerous murders or something, I question whether he should be turned back out into society.
Well, do I take it, sir, that under those circumstances, you would consider no punishment other than the maximum range of punishment?
MR. LAMBRIGHT: Your Honor, am going to object to this line of questioning. It's in the Court's charge that this matter is not within the province of the Jury, but within the province of the Board of Pardon and Paroles and the THE COURT: That will be MR. LAMBRIGHT: Thank MR. GRAY: May we have his for our Bill of Exception, Your
MR. GRAY: Note our slo se ee wow Appellant now claims that the court would not let determine if Mr. Schleper would consider any punishment than the maximum.
Clearly, here, the defense was attempting to an advance commitment from the venireperson as to the Copied from holdings of Texas State Archives on which he would determine punishment, and he was not titled to this. The defendant may not propound to the venireperson questions that tend to commit him in detail any course of reasoning in advance of his selection, Barry State, 305 580.
Mr. Schleper had made it clear that he would the minimum, under defense
Walton Theis, after being informed by the court that jury must not consider it as any evidence against defendant if he does not choose to testify, made it clear he could follow such an instruction 823, lines Appellant, at page 15 of his brief, now cites from Exhibit at the motion for new trial, this quotation the San Antonio Light of July 17, Theis, a 49-year old carpenter, said too was bolted by some of the but also said, I was shocked there was any defense testimony.'" Patently, the defense knew of this statement at of the hearing on motion for new trial, since that is when this exhibit was put in It is not conceivable that the diligent defense failed to determine wnetenee there we any cougtaenataon the jury of the defendant's failure to testify, because would have been clear reversible error properly brought at motiomaor new trial.
There is no support in the record for the claim Copied from holdings of Texas State Archives made for the first time that Mr. Theis, foreman of the could not and did not" follow the law applicable to defendant's failure to EDWARD Appellant claims page 152 of his brief) that some all" of his challenges of venireperson Edward Green voir at 1583-1626) should have been This simply is not an assignment of error, Phillips State, 511 22, and cases there At_R. 1625, lines 11 to 20, Mr. Green made it clear he would acquit if he had a reasonable doubt as tc Thereafter the defense made no further inquiry of BILLIE Billie Rock clearly stated that he would require State to prove the identity alleged as to deceased beyond reasonable doubt, and would vote to acquit if the Could tmotebe idemeatied, CR. 1574ggine 13 to*R line as follows:
My last question was: suppose the proof shows that the person killed is unidentified and nobody knows who he was. Now, you said under those circumstances, as I understand, as I understood you, that you could not give the defendant the benefit of the reasonable doubt and find him not guilty; did I understand you to say that?
A I might not have understood your Copied from holdings of Texas State Archives correctly. Now, in other words, accused of killing Cobble. Let's say.
But the man that they prove well, the man that they proved he killed is unidentifiable.
0 ese sia A And they are not sure that he's Yes. You have a reasonable AN Nes, sins QO As to Whether it'(s) Mr. Cobbiie or A Yes, Siti. melt they don't prove the person he killed was that person, then I do have a reasonable doubt. I misunderstood your question. I did not have it straight what you were THE COURT: Would you resolve doubt in favor of the defendant and him not guilty?
ROCK: Yes, Same Geetney didn't prove that he had killed and definitely proved that he had killed that person.
THE COURT: The challenge is MR. GRAY: Note our
Then, going back to what I asked you earlier.
Then, the fact that perhaps the defendant could not later be prosecuted for the killing of this unidentified person, you said that you would take that into consideration and was one of the factors that would forbid you from finding the defendant not guilty. Now, was I mistaken in that?
MR. LAMBRIGHT: Your Honor, we are going into a question of law. Maybe some question about jeavordy (sic) there. I am going to object to him asking the gentleman to draw a conclusion of law. And it's repetitious.
THE COURT: I think it may be repetitious.
Mr. Rock, the State is required to prove the Copied from holdings of Texas State Archives material allegations in the indictment.
if they name a deceased, that is a material allegation. Now, if they do not prove to your satisfaction, beyond a reasonable doubt that the deceased is the person named
THE COURT: whether they prove he's somebody else or whether they don't prove he's anybody, if you have a reasonable doubt in your mind, it's your duty as a Juror to resolve that doubt in favor of the defendant.
Now, will you be able to do MR. ROCK: Yesi THE COURT: You may question about thing else.
Clearly this juror was intending to acquit if he a reasonable doubt as to identity of the victim.
claim of error has no factual support in the Appellant incorrectly claims, as to these six of error, that there is reversible error under Wolfe
Deep Clem Staimee. 314 s/o, Reich vi State, 48. 5.W..1072..at It appears to be his theory that he was prevented questioning Balzen, Tull, Schleper and Rock relating to use of peremptory challenges, and required to use challenges on Balzen, Schleper and Green, when they had shown to be subject to a challenge for This simply is not As above shown in discussion of them individually, there was no showing of cause to challenge as to Schleper and Green.
Copied from holdings of Texas State Archives There was no denial of information for use as peremptory challenges, as to Balzan, Tull, Schleper and If there had been any such error, appellant did as he now claims, come within the rule of Wolfe
He seems to rationalize that after he moved for additional peremptory challenges at close of voir dire no reasons therefor then set forth), and then set forth venirepersons objectionable to him, he came within the supra, rule by peremptorily excusing ten other venirepersons.
Clearly this is not within the Wolfe case.
In the Wolfe case, 178 274, the venireman who challenged for cause and not excused for cause was the of the grand jury which had indicted Wolfe was followed in Salazar State, 193 The venireman there challenged for cause and not excused cause had said he would require more evidence on the part the accused to justify a defense where the accused was officer than it would if he were a private In each case, the defense used a peremptory because of a wrongful denial of a challenge for There is simply no such showing The grounds of error 17 to 20 inclusive eis without merit.
These five points of error read as Copied from holdings of Texas State Archives POINT
Appellant was denied his right to a public trial, guaranteed by Article 1, Section 19, Vernon's Ann. Texas Constitution, where the trial court barred the press and the public from the courtroom during the voir cire the first twenty-three venirepersons.
Appellant was denied his right to a voublic authorized by Article 1.05, Vernon's Ann. Code of Criminal Procedure, where the trial court barred the press and the public from the courtroom during the voir dire of the first twentythree venirepersons.
Appellant was denied his right under Article 1.24, Vernon's Ann. Code of Criminal Procedure, that the proceedings and trial be public, where the trial court barred the press and the public from the courtroom during the voir dire of the first twenty-three venirepersons.
Appellant was denied his right under the Sixth and Fourteenth Amendment to the Constitution of the United States to a public trial, where trial court barred the press and the public from the courtroom during the voir dire of the first twenty-three venirepersons.
Appellant was denied his right to a public trial, guaranteed by the Texas and United States Consti tutions where the court refused, over timely objection, to remove venireman Walton Theis from the panel."
In these five points of error appellant claims he denied his right to a public trial, asserting that the and the public were barred from the courtroom during voir dire of the first 23 venirepersons Copied from holdings of Texas State Archives At request of the defense, the court deviate the statutory method of jury selection, in order to the venirepersons from influencing each other when as to their opinions, if any, as to the cases at trial Fee, sume LE to Re 739), line 6; 762;
ime 24 tO oR dame The procedure set up was to hold court for voir in the grand jury room of the Bexar County Courthouse, which the court adjourned. It is across the hall from Central Jury Room, where the panel was located. Tables set up for counsel in the grand jury room, and the persons were brought in one at a time 774, lines
775, lines 22-25). Everyone seemed agreeable to No one objected, and the objective was to implement the quest of the defense.
The couse, in, its effort to reduce the news about which appellant now complains in his first 15 of error, declined to allow, at the voir dire, the news and general public, including a parent quoted as appellant's assassination pages 58-59 of appellant's This seems at first to have pleased everyone, but
861, line 14 to 862, line 8, after one possible ie., Walton Theis 824-847) had been qualified, and a number had been exempt or excused, the appellant complaining that exclusion of news media and qeneral violated his rights under the Sixth Amendment to the Copied from holdings of Texas State Archives States Constitution.
This was overruled 862, line Later, after qualification of two more venirepersons, appellant moved to have the hearing on jury selection in courtroom 915, lines 22-25). Still later an objection made complaining of the procedure generally and statutory rights. On inquiry by the court, appellant wanted to examine each venireperson apart from the rest of panel 940-941), rather than using statutory The next day, for the first time, appellant moved a mistrial, claiming that he had been deprived of a public trial under the Sixth Amendment and to quash the entire panel claiming news media and general public were not when it was impanelled). These motions were denied
Appellant then asked for the eight venirepersons were selected the first day to be excused, which was
On July 5, 1974, the court gave defense the opportunity to again urge its objection to seven venirepersons who were qualified in the grand jury after the defense objected to that procedure. The promised to excuse them if such an objection was made, also offered to allow the defense to retain any of prospective jurors they wished to retain by waiver of objection to them 1877).
Appellant moved to quash these seven persons who qualified as possible jurors, and the motion was granted 1878, lines 17-21).
Copied from holdings of Texas State Archives The court denied a motion to quash all eight persons, including Mr. Theis, who was qualified before objection was made to the procedure which had been to accommodate the defense
The court ruled that the defense had waived this jection as to Mr. Theis 1880, lines Appellant cites authorities holding that it is with harm presumed, not to comply with the statutory cedure when it is demanded, Fontenot State, 378 which quotes 1 Branch 543 as An infringement of the jury law will a reversal without reference to whether injury to the defendant is shown. When the statute prescribes the method of procedure and compliance therewith is promptly and timely demanded, the trial court is not authorized to permit infringement of the jury law." Emphasis added Here the defense asked that the court depart the statutory procedure, expressly stated, even when ing, that it did not want the statutory vorocedure voir dire of the panel in one room at one time) and had no objection at all prior to the qualification of Mr.
Clearly, by appellant's own authorities, this of error is without merit.
Further, as was noted in Price State, 496 103, cited by appellant, there is no showing of Here, for three reasons independently sufficient, claim of error is without
Departure from statute was at request of defense.
Copied from holdings of Texas State Archives
All venirepersons selected in the after objection was made were excused;
No demand for statutory procedure to be ever having been made, harm must be shown none was shown.
REPLY TO POINTS OF ERROR TWENTY-EIGHT AND TWENTY-NINE
These grounds of error claim, incorrectly, that trial court conveyed to the jury his opinion of the merits the case.
Tne instruction here complained of is as follows 561-562, paragraph
The State has the burden of proving the defendant guilty beyond a reasonable doubt in each individual case before the jury would be permitted to return a verdict of guilty in that particular case. You are instructed that you cannot consider evidence of the guilt of one or more of the offenses charged by indictment as evidence of his guilt of any other offenses charged. If there is any evidence of offenses other than those offenses for which the defendant is charged by indictment, you cannot consider such evidence as establishing the guilt of the defendant for any offense with which he is charged by indictment.
KER The above instruction is incorrectly copied at 174 of appellant's brief, apparently by clerical Appellant asserts that the second sentence in above quoted paragraph 9-a is a comment on the weight of evidence under Art. 38.05 The court included in his instructions the at 563, paragraph
You are the exclusive judges of the Copied from holdings of Texas State Archives proven, of the credibility of the witnesses and of the weight to be given the testimony but the law of the case you must receive from the Court as contained in these instructions, and be governed thereby. You must disregard, any comment or statement made by the Court uring the trial or in these which may seem to indicate an opinion ST item of evidence verdict to be reached in this case. No indication was intended." Emphasis as aw ras Appellant here attempts to equate paragraph 9-a, 664, where the Court said, I think you might find that the offense has been There simply is no similarity.
Here three rules, each independently sufficient, the claim one without merit.
First, the court cured any error, if any existed, its instruction disclaiming any intent to comment on eight of the evidence and ordering the jury not to anything the court said as an opinion with respect to fact, item or evidence or verdict to be Similar disclaimer instructions were approved in Cline State, 463 441; Lee State, 454 207;
State, 290 671; Chevallier State, 404 strada Pusrace, 422 Kaas Second, the charge must be considered in its and any error in an instruction is deemed cured if it on consideration of the entire charge, that the law correctly stated, 31 Tex. Jur. Instructions Sec. 94 at
mane OO Copied from holdings of Texas State Archives This rule applies to comment on the weight of the 31 Tex. Jur.2d Instructions 95 at
When this is done there simply is no comment on weight of the evidence.
Third, there was no objection as now made at time trial. The objection simply claimed generally that the numbered paragraph was a comment on the evidence. No was made to convey the claim now made that the second of this paragraph implied that the court believed there evidence of appellant's guilt in at least one of the The objection made by appellant at trial is 25 at.R. 555-556, and reads as Defendant objects to numbered paragraph Nine-A wherein the court instructs the jury that You cannot consider evidence of defendant's guilt of one or more of the offenses charged by indictment as evidence of his guilt of any other offenses charged because this constitutes a comment on the evidence.
Further, the objection does not in any way state the instruction is claimed to be a comment on the and it does not assert that there is a comment on the weight of the evidence merely on If there were a comment on the weight of the this would not preserve it for An objection to the charge must be specific, Point of Error Twenty Nine is without
REPLY TO POINTS OF THIRTY TO THIRTY-FIVE
Appellant's Points of Error Thirty to Copied from holdings of Texas State Archives pages 177-178 of his brief, read as
The trial court erred in overruling appellant's objection to the court's charge for its failure to properly and adequately limit the jury's consideration of any specific offense.
The trial court erred in overruling appellant's objection to the court's charge for its failure to limit the jury's consideration of evidence of extraneous offenses, particularly that relating to the twenty-two homicides in which the defendant was not charged or indicted.
The trial court erred in overruling avpvellant's objection to the court's charge for its failure to limit the jury's consideration of evidence relating to Dean Corll's alleged disposition of stolen property taken from victims not named defendant's indictments.
The trial court erred in overruling appellant's objection to the court's charge for its failure to limit the jury's consideration of the evidence relating to the extraneous offense arising from appellant's shooting of Dean Corll.
The trial court erred in overruling appellant's objection to the court's charge for its failure to limit the jury's consideration of extraneous offenses relating to Timothy Kerley and Rhonda Williams.
The trial court erred in overruling objection to the court's instructions to limit the purpose for which the jury might consider evidence of extraneous offenses.
Copied from holdings of Texas State Archives Appellant now makes each of these claims for the time.
The court charged the jury as follows 561-2, graph
The State has the burden of proving the defendant guilty beyond a reasonable doubt each individual case before the jury would permitted to return a verdict of guilty in that particular case. You are instructed that you cannot consider evidence of the defendant's guilt of one or more of the offenses charged by indictment as evidence of his guilt of any offenses charged. If there is any evidence of offenses other than those offenses for which the defendant is charged by indictment, you cannot consider such evidence as establishing the guilt of the defendant for any offense with which he is charged by indictment.
This instruction is comparable to the instruction Willson's Texas Criminal Forms, Seventh Edition, which the consideration thereof if there is any evidence you. tending to show that the defendant, AB., acts other than the offense alleged. The charge in case at bar, however, excludes completely consideration such acts, instead of merely limiting the purposes for they can be considered.
Appellant objected generally that this did not the jury's consideration of specific offenses graph 26). He did not make the specific complaints that now makes.
The objections to the court's charge must be Mutscher State, 514 905 at The complaint on appeal must be the same made at Of trial, Simpson State, 507 530; Campbell
Copied from holdings of Texas State Archives 636; Cox State, 523 Thus these points of error as to these six offenses are not preserved for However, if they were preserved for review, they without merit.
The many extraneous offenses which were during appellant's trial of the six murders for which he was indicted, were admissible, Robbins State, 387 McCoy State, 162 976, as being so interwoven the said six murders that mention of them could not have deleted and leave intelligent testimony as to the The jury does not have to function in a vacuum, Awareche State, 486 As has been shown, the court charged the jury not consider any evidence of any extraneous offense on the of guilt or innocence in each case at The rule here applicable is that a complaint or seeking an instruction not to consider extraneous offense offenses, must specify which offenses, Walker State, at 660. Here, there are no specific offenses set out, and no specific act mentioned, except shooting of Dean Corll.
The charge given by the court correctly removed evidence relating to any such offenses from consideration, in establishing guilt in the murders for which was on trial.
As to evidence of the shooting of Dean Corll in self defense and in defense of Rhonda Williams and Timothy Copied from holdings of Texas State Archives there simply is no offense by appellant here shown.
patently was a justifiable homicide, Secs. 9.31, 9.32 9,33 end Arte 7042; Arte. 1207. 1221, 1222; 1225, 1226 of the Penal Code of 1925.
Points of error Thirty to Thirty-five inclusive without merit.
Copied from holdings of Texas State Archives
Appellant's points of error thirty-six to inclusive, read as follows:
Appellant was denied due process of law where the court permitted officer Mullican to testify at the trial to alleged oral statements made by appellant that were in addition to and not included in those introduced at the pre-trial hearing contained in the statements made by Wayne Henley to be offered in "evidence" filed at the order of the judge who conducted the pre-trial hearing.
Appellant was denied due process of law where the State was permitted to introduce the testimony of officers Mullican and Smith regarding alleged oral confessions relating to Johnny Delone and Frank Aguirre, when these same officers had testified at the pre-trial hearing to statements regarding Mike Balch and Raymond Blackburn, and at no time mentioned either Aguirre or Delone, this change in testimony being required by physical evidence and facts discovered after the pre-trial hearing.
Appellant was denied due process of law where the State knowingly introduced testimony of Mullican, Smith and Young that was materially and substantially at variance with their testimony at the pre-trial hearing, particularly the trial testimony relating to Johnny Delone and Frank Aguirre.
The trial court committed reversible error in admitting appellant's alleged oral confessions relating to the torture of some or all of the where such confessions did not comply with the requirements of Article 38.22(1) V.A.C.C.P.
The trial court committed reversible error in admitting appellant's purported oral confession relating to the "body box," State's Exhibit No.
Copied from holdings of Texas State Archives Twenty-Six, where such confession did not comply with the requirements of Article 38.22(1) Vi; Aas
The trial court committed reversible error in admitting appellant's purported oral confession relating to Frank Aguirre, where such confession did not comply with the requirements of Sa<22 (i)ple);,
The trial court committed reversible error in admitting appellant's purported oral confession relating to Marty Jones, where such confessions did not comply with the requirements of Article So 40) ale), AC. Gers
The trial court committed reversible error in admitting the testimony of Officers Mullican, Smith and Young relating to appellant's alleged oral statements regarding the details of the offenses, where such statements did not with the requirements of Article 38.22(1) Wo NIGas At pages 193 to 233 of his brief the anvvellant forth, with considerable direct quotations from the the manner in which, in one continuous conversation Pasadena detectives Mullican and Smith, interrupted only incidents of travel and exhumation, and by proper for the defendant to rest and eat, Defendant Wayne Henley relieved his burdened conscience See 2260) making disclosure of his acts of criminal began This conversation with Detective 11:00 o'clockiien the morning of August.8, 1973; at the police and Pasadena, Texas 2304),/continued until the night of 10, 1975 2472), when Mullican, Smith and appellant at the Pasadena Police Station.
Copied from holdings of Texas State Archives Appellant's brief does not, as is here done, point that this was one continuous conversation, but at the end his forty page discussion of the facts relevant to the of error here asserted, he makes, at page 233 of his the following admission that here there was no error: as to admissibility and sufficiency of It is apparent from the foregoing that the evidence was sufficient to support the jury's verdict, assuming that it was admissible if inadmissible, that its introduction was harmless error.[Emphasis added Page 233 of appellant's brief) The State agrees that if, arguendo, there was any here, it was harmless.
The flood of evidence of these murders makes that clear, Harrington California, gq Sect. 726, ussre The State does not agree with the defendant's tion that there was any Summarizing the Pasadena uniformed Police Officer Jamison was eputy mugust at 8:24 when he received a call go to 2020 Lamar. He arrived there in two or three 2241-2)5 This was a Wednesday
Theee people a on the sidaveme in the white frame residence at 2020 Lamar. They were Williams, Timothy Kerley and appellant Elmer Wayne
Appellant was crying. Rhonda had her arms around Kerley was standing
Copied from holdings of Texas State Archives Appellant told the officer he had killed a man 2244). The officer recovered a blue steel revolver which lying on the sidewalk to the side and behind the three, this is State's Exhibit No. 1 2245), admitted in with any objection expressly waived
The officer found the body of Dean Corll in the 2253). He then gave a "blue card warning" to the 2254), as, 2253) Manes 13-24 Number one, you have the right to have a lawyer present to advise you either prior to any questioning or during any questioning.
Number two, if you are unable to employ a lawyer, you have the right to have a lawyer appointed to counsel with you prior to or during any Number three, you have the right to remain and not make any statements at all and any ments that you make probably will be in evidence against you at your trial.
Number four, you have the right to terminate interview at any This officer asked appellant no questions.
appeared to understand the warnings and not to be drunk intoxicated or anything", and did not ask for a lawyer
The officer picked up the firearm from the using a pencil through the trigger quard, and put it in patrol car trunk Re Appellant, in the patrol car back seat, blurted out that he didn't care who knew, that he had to it off his chest but he might know where there would be more bodies" 2260, lines Detective Lawrence 2266) arrived at the Copied from holdings of Texas State Archives at 8:30 am. Detective Sergeant Dave Mullican 2266) assigned to investigate the case 2267, lines Jamison took Henley, Kerley and Rhonda Williams to the while the two detectives, Lawrence and Mullican, stayed the scene about 15 minutes and then returned to the abowe oiaeme CR. 2267).
At approximately 10:45 am. a magistrate, Court Judge Russell Drake, gave the defendant his warning 2268). This was done in the detectives office
The officer testified as to the warning, being limes 18-25, 2275) A On this date, Flmer Wayne Henley, Jr., a white male, age seventeen, personally appeared before me in the custody of
Lawrence, Detective Sergeant, Police officer, Pasadena Police Department, and I gave said arrested person the following Elmer Wayne Henley, Jr., you have been accused in the offense of murder. You have a right to remain silent. You have a right to retain counsel. You have a right to have an attorney present during interview with peace officers or attorneys representing the State. You have a right to terminate that interview with police officers or attorneys representing the State at any time. You have a right to request appointment of counsel if you are indigent and cannot afford counsel.
You have a right to have an examining trial.
You are not required to make any statement and any statement you make may and will be used against you upon your The above statutory warning given by Judge Russell Drake, Pasadena Municipal Court, Harris Court (sic), Texas, on the 8th day of August, 1973, at 10:55 am." Signed Russell Drake.
Appellant appeared to be normal, calm and and to understand the warning.
Copied from holdings of Texas State Archives He did not indicate that he wanted a lawyer or to remain silent 2275-2276).
About thirty minutes after the warning was appellant was turned over to Detective Sergeant Mullican 2276) Officer Jamison knew that Henley then was years old Rowe
Sergeant Mullican 2286, line (1) saw appellant he arrived at the scene about 8:40-8:45 am. 2287).
had been shot six times and was dead 2269 The detective saw a board in the center of the room 2292), as shown in the picture which is State's hibit Four 2292), admitted with an express waiver of jections 2293).
This board was about eight feet long and two half feet wide, plywood, with six holes drilled, at center ere and ropes and handcuffs attached 2293).
were four pairs of handcuffs, three of which were shown in 2294).
There also was a bayonet, oo paper bags ing like acrylic, and a can of acrylic spray also some
A large portion of the room was covered with about a sixteenth-inch thick, and there was a roll of plastic 2295). This plastic was capable of holding
A photograph of Billy Lawrence was in the chest Copied from the holdings of the Texas State Archives drawers 2334).
In the bedroom, on the floor, there was a small penis
box. In it was a dildo a rubber Also in the 18-inch long toolbox was a large white looking object, two glass rods about six to eight inches long, what looked like three marijuana cigarettes. There also a torn picture that looked like it came from a driver's license 2298).
A photograph of all of this was admitted with expressly waived 2299, line In a tool shed about 8 10 feet) at the 2020 premises 2301), a wooden box was The caliber pistol which is State's Exhibit was sent to Fred Rymer, Houston Department of Public for ballistics comparisons 2303).
A photograph of Billy Lawrence was on the dresser Which
After spending about two and a half hours at the Detective Mullican returned to the police department in dena, where appellant told him he understood the warning by vee Drake 2304). This was about
Henley offered to lead 2307) the officers to boatstall at 4500 Silverbell in Houston 2308).
said Dean Corll had told. him he had killed some boys buried them in this warehouse or storage shed, maybe five more Copied from the holdings of the Texas State Archives After about 15 or 20 minutes at the Houston Department 2310, line (2), a trip to stall 4500 Silverbell was taknat appellant's directions
In the party were appellant Henley, Detective Detective Smith, Houston Police Detective Siebeneicher, and Detectives McComas and Earls
Henley directed them to Boat Stall Number 11, which said was Dean Corll's boat stall 2312). With of the landlady they forced the lock, the tenant Corll.
dead 2313)- They saw in the stall a stripped car, a rake, a of shovels, some civil defense water cans, some sacks of and a water can 2314).
A diagram of the stall was introduced as State's hibit Seven, with objection expressly waived
A plastic bag there contained men's clothing including a pair of brown shoes, a pair of black shoes, a blue shirt with looked like a bird on it 2316). This shirt, later as State's Exhibit 86 3031-3032), was identified as belonging to Charles Cobble 3109), and had on it a pubic hair identical to one from appellant 3015, 3016, 3030).
The plastic bag of clothing was marked as EXGtbate 52 2754).
The blue shirt with the bird on it, and other in the plastic bag found at the boat stall were by Charles Cobble's mother as belonging to Charles or Jones 3109, line 4 to 3110, line (10) as Copied from the holdings of the Texas State Archives Here. Let me take it out, here, because want you to look at it and tell us whether or not you can recognize it. Why don't you look at all of it, before you give us an answer.
A The shirt Charles had on that day.
All right. And, for the Record, you referring to this, and this is State's Exhibit Number Eighty-Six. This is a shirt with a bird of some type on it?
And your son, Charles, had it on that A Yes. And this is the pants that he was (indicating) All right.
A This is his belt. (indicating) You recognize the belt?
A Yes. All right. Do you recognize either pair the shoes? Let met get these shoes.
A These are Charles' shoes, right here These are Charles Cobble's shoes you recognize.
Do you recognize any of the other clothing, Mrs.
A I recognize these pants. These are pants, and his belt. (indicating) Marty's pants and belt. Do you recognize shoes, at all?
Did you see Marty Jones fairly frequently, and what clothes he was wearing or wore and all, like that?
A Yes. I did. And, in fact, you know, since he was living with us, and just living four apartments down, we often went to the together.
Copied from the holdings of the Texas State Archives At the boat stall, when appellant took the there, also was an old four by eight foot piece of with canvas straps about the size of a person's wrist on suspended from the ceiling
The stall is shown by photographs, State's 9 et seq., admitted with objection expressly waived
The digging for bodies was described thus by Sergeant Mullican before the jury 2323, line 4 EOuReEe line (4): 3 A After I entered the boat stall with the detectives there was an area of cracked ground approximately here in the boat stall. That was slightly humped, looked like it had possibly been dug up and the dirt refilled. And we dug there with a shovel down just a short distance and discovered a body.
All right, sir. Now, was there digging in the boat stall that afternoon August the 8th?
A Yes, Sir; there 10 What, if anything, was found beneath the surface there in the boat A Numerous bodies.
How many bodies were A That evening there were eight. The evening the 8th there were eight bodies Eight bodies A Yes, sir.
Were there any other bodies found in that boat stall at a later time?
And when was Copied from the holdings of the Texas State Archives A That was the following day. A total of more bodies found.
A. Yes, Sik, Further description, using a diagram, State's 24 admitted at 2325) was given by Mullican as 2326, line 16_to Re 2329, dane About 10 pm. to 10:30 pm. appellant returned to Pasadena Police Station
After they left the boat stall the officers went the house at 2020 Lamar and in the back yard 2333).
a box was found State's Exhibit 26, see 2337, and references to in list of exhibits supra in this note admission in evidence of with objection expressly waived atR. 2634, lines 22-24).
The next day at 9 to 9:30 am., the officers appellant from the Pasadena jail and continued their sation with him 2339).
Officer Mullican was continuously with Henley from this time until around midnight on this Thursday, August 9, 1973 About noon on August 9, 1973, a statement by was reduced to writing 2342). A Jackson Denno the evidence in which comprised Volumes to XXII was held by Judge Hatten in Houston on appellant's motion suppress. Judge Hatten, as a result of this hearing, ted on January 31, 1974, a written instrument Findings of Fact on Voluntariness and Admissibility of Copied from the holdings of the Texas State Archives and Written Confessions. It was entered in Volume IX, 807 of the General Minutes of the 176th District Court January 31, 1974.
A copy of this instrument was inadvertently left of the 30 volume record in this On March 15, 1976, the undersigned assistant attorney, James Brough, and Hon. Will Gray, for the filed a joint motion in the 176th District Court in County, Texas, requesting that the court order the clerk his court to forward a certified copy of this finding District Clerk of Bexar County, which was that day Subsequently, a joint motion Mr. Gray for defense and James Brough for the State, was filed in 185th Judicial District Court in Bexar County, being presented to the court by Hon. Douglas Young, Criminal District Attorney of Bexar County, requesting this written findings of fact be added to the record on in the six cases-here appealed, and this was ordered, the order again approving the record as thus Since the writer of this brief does not at this know precisely where this finding will be placed in the a Xerox copy of the copy forwarded by the Harris County trict Clerk is attached hereto as Appendix The evidence on appellant's statement taken in County See Vol. to was offered: in Bexar for-consideration 2340), at which time get ee as to the written statement 2340, line 25 to
Copied from the holdings of the Texas State Archives THE COURT: It has already been held to voluntary and This referred, obviously, to the following four graphs at pages 8 and 9 of Judge Hatten's findings, reads as follows:
The written statement made August 9, to Detective Mullican, was made by Defendant Elmer Wayne Henley, Jr., freely and voluntarily, without compulsion or persuasion, and he knowingly, intelligently and voluntarily waived his rights in connection with the making and signing of said written statement.
statement shows therein the accused at a time prior to the making thereof received from said Detective Mullican, the person to whom statement was made, a warning that he, Defendant, had a right to have a lawyer present to advise him either prior to or during any questioning, that if he was unable to employ a lawyer, he had a right to have a lawyer ted to counsel with him prior to. and.during any questioning, that if he was unable to employ a lawyer, he had a right to have a lawyer appointed to counsel with him prior to and during any questioning, that he had a right to remain silent and not make any statement at all and that any statement he made could and probably would be used in evidence against him at his trial, and that he had a right to terminate the at any time.
The statement also shows. that a Magistrate, Judge Russell Drake, had previously given the said Defendant the warning by said Magistrate herebefore quoted in this finding of fact and law.
The said statement shows therein, and Court now finds from all the evidence at said hearing that the said Defendant knowingly, intelligently and voluntarily, without fear, persuasion or any form of coercion duress and while sane, lucid,. and in command of his actions, waived the right to consult with a lawyer before he made said statement; and waived his right to remain silent and voluntarily made and signed said statement.
The Court finds this-written statement subject to materiality is admissible in evidence.
Copied from the holdings of the Texas State Archives The written statement itself was introduced in dence as Defendant's Exhibit 7 at the motion to suppress Houston, and can be seen at
This gave rise to some confusion at trial. The put in evidence 2349) a signed carbon copy of the statement 2347-8).
As can there be seen, two typed lines were posed on two printed lines.
As a result, a Xerox copy of the original 2565, 2575) was introduced as State's Exhibit 49 2580) and can be seen at 3310. Each has the same 2572) but in Exhibit 49 the two typed lines are not imposed on the printed The written statement, Exhibit 49, reads as follows:
Statement of Elmer Wayne Henley, Taken at Davis, Pasadena Police Dept., Harris County, Onrthe Sth day of August, 1973, at..10 clock
AM., I, Elmer Wayne Henley, was taken before Russell Drake, a Magistrate at his office Harris County, Harris County, Texas, who Of the accusations made against me;
That I had a right to retain counsel;
That I had a right to remain silent;
That I had a right to have an attorney duringmy interview with peace officer or attorneys representing the state;
That I have a right to terminate an interview at any time;
That I have a right to request appointment of counsel if I cannot afford counsel;
That I have a right to an examining trial;
That I am not required to make any statement, and any statement I make may be used against me.
I have now been warned by Detective Mullican, the person to whom I am making eee Copied from the holdings of the Texas State Archives statement, and was so warned by Detective Mullican prior to any questioning of me by police while I was under arrest:
that I have the right to have a lawyer present to advise me either prior to any questioning or during any questioning; that if I am unable to employ a lawyer I have the right to have a lawyer appointed to counsel with me prior to or during any questioning, and I have the right to remain silent and not make any statement at all and that any statement I make may and probably will be used in evidence against me at my trial, and
I have the right to terminate the interview at any time.
I do not want to consult with a lawyer before make this statement, and I do not want to remain silent, and I now freely and voluntarily waive my right to a lawyer and to remain silent and make following voluntary statement.
My name is Elmer Wayne Henley, I am a white male 17 years old and was born on 5-9-56 in Houston, Texas. I have completed the. 8th grade in school and can read and write the English Language.
presently live with my Mother at 325 West Street in Houston, Texas.
About 3 years ago, I met a guy by the name of Dean Corll. Dean was a lot older than me and a school friend by the name of David Brooks introduced me to him. David was always riding around in Dean's car and everything. I was only about 14 at the time and I thought this was great. David Brooks told me that he could get me in on a deal where I could make some money, and he took me to Dean Dean told me that he belonged to an organization out of Dallas that bought and sold boys, ran whores and dope and stuff like that. Dean told me that he would pay me at least for every boy that I could bring him and maybe more if they were real good looking boys. I didn't try to find any for him until about a year later, and I decided that I could use the money. to get better things for my people so one day I went over to Dean's Apt on Schuler street and told him that I would finda boy for him. Dean had a GTX at the time, and we got in it, Dean and me and started driving around.
We picked up a boy at 1llth.and Studewood, and I talked to him since I had long hair and all and it was easier for me to talk to him. I talked into going to Dean's Apt so we went over to Dean's Apt. Dean left some handcuffs laying out where they could be seen, and we had this little deal Copied from the holdings of the Texas State Archives set up where I would put the handcuffs on and could get out of them. Then we talked this boy I don't remember his name) into trying to get out of them. The only thing was we put them on where the locks were turned in where he couldn't get the key into them. Then Dean took the boy down and tied his feet and put tape over his mouth.
I thought Dean was going to sell him to this organization that he belonged to, so I left. Then the next day, Dean paid me Then day or so later I found out that dean had killed the boy.
Then I found.out. that Dean screwed him in the ass before killing him. This was the start of the whole thing, and since then, I have helped Dean get boys, I don't remember exactly how many. Dean would screw all of them and sometimes suck them and make them suck him.
I killed several of them myself with Dean's gun and helped him choke some others. Then we would take them and bury them in different places.
David Brooks was with us on most of them.
I think the only three that David Brooks with us on was the last ones at the house on Lamar Street in Pasadena. The ones that I can remember by name are Charles Cobble who I killed and buried'in the boat stall. I shot Charles in the head with Dean's pistol, over on Lamar Street in Pasadena, then we buried him in the boat stall.
We killed a boy by the name of Billy Lawrence, don't remember how we killed him, but we him up at Dean's place on Sam Rayburn Lake.
killed him at the house on Lamar Street too.
I shot and killed.Johnny Delone, and we buried at High Island.
We choked Frank Aguirre and buried hem (sic) in the head and we buried him at Rayburn. The last one that I cna (sic) remember their name is Homer Garcia, and I shot him in the head and we buried him at Rayburn. I don't remember the dates on all these, because there has been too many of them.
Some of them were hitch-hikers and I can't remember their names.
While making this statement, I have not.asked for nor wanted the presence or advise of a lawyer. At no time during the making of this statement did I ask to stop or want to stop making this statement.
I have read the 2 page(s) of this statement, each page of which bears my signature, and the facts contained therein are true and hea Copied from the holdings of the Texas State Archives This statement was finished at 12:40 PM. on 9th day of August, Detective Mullican testified that he read to the warning contained in the statement prior to taking written statement 2343) which began at 11:55 am.
(6). This warning, he testified, was as follows 2345, A That he had a right to retain counsel, a right to remain silent, and a right to have an ney present during an interview with any peace officers or attorneys representing the State, a right to terminate the interview at. any time, the right to request appointment of a counsel if he could not afford counsel, a right to Examining Trial and he was not required to make any statement and any statement he made be used in evidence against him.
The officer typed up the statement as appellant it to him, and then appellant spent five minutes reading over and then signed it in Sergeant Mullican's presence 2346).
Detective Sergeant Nassif and Lieutenant Goad as witnesses 2347).
Appellant did not at any time request a lawyer or he did not want to discuss the case 2348). He was not any way coerced into making the statement
Exhibit 28 was read to the jury 2351), the ing there conforming to Exhibit 49, above Detective Mullican testified, as to the related to him by Henley, as follows 2356, line 22 to 2357, line 14; 2358, lines And, at the time the statement was actually given as to how these persons actually met saree eee ee Copied from the holdings of the Texas State Archives their death, whether it was strangling or shooting or however, did you have any idea how any of them were killed, prior to any of the reports of the medical examiner?
a NO, Sire And, at the time, did you have any idea any of them were buried, other than the ones that had been that he had referred to that had been found in the boathouse?
A NOs Sales Not idea where, but the specific location that time?
A SNo didnvste 10 And, prior to this time, did you know where any prior to his telling you that there were some bodies up around Lake Sam did.you have any idea that there were bodies buried up A I had no Ree.
A He told me that he would willingly guide me to Lake Sam Rayburn area where these other bodies were buried. And, if necessary, on to High Island where there were additional bodies buried. Well, shortly thereafter did you leave and to Sam Rayburn?
The officers, with Henley, left the Pasadena station around 2:30 pm. They got to the Houston Police partment about 3 pm. and left there about 3:30 pm.
After the ride from the Houston Police Department Sam Rayburn had begun, appellant told Detective numberof things.
He said he thought Billy Lawrence was buried near Lake Sam Rayburn and when they got to the area near Lake Rayburn to which appellant guided Copied from the holdings of the Texas State Archives them, appellant said, Slow down. I think this is where Billy Lawrence is buried." 2360) Appellant said he never worried about being stopped by a highway patrolman while taking bodies to the Sam Rayburn and High Island areas because they were carried in a body box the same Detective Mullican had seen in. Dean Corll's shed State's Exhibit 2361) The box was found to contain human hair identical to that of Charles Cobble 3029) as well.as hair identical to that of appellant Henley, in State's Exhibit. 3016, 3027, andaesee
In this same conversation appellant, with Mullican and Sid Smith present, as well as Houston Willy Young 2415-6), told about the handcuffs and He said Dean Corll bought most of them at vawn 2417). Henley would trick the victims into being handcuffed 2417).
Henley would put handcuffs on behind him and get out of them he kept a key in his back pocket (Ree2 419) and then get the victim to put them on and see if he get out of them. The victim could not get out of them Then, usually, Henley and Corll would take the down and attach him to the board
An example he gave was Frank Aguirre
Henley had known Frank Aguirre quite a while and had. gone with Rhonda Williams 2420), who was to the board, with Timothy Kerley at the time that rescued them by killing Corll.
After Henley tricked Aguirre into the handcuffs, Copied from the holdings of the Texas State Archives "had his fun" with him 2421), meaning oral and rectal omy 2422), and then Henley killed and buried him 2421) On the same trip Henley told about choking Marty Jones with a piece of rope as follows 2422, line 25 to 2423, line (12):
THE WITNESS: Wayne was telling me about choking Marty Jones with a piece of rope and he said, It's not. easy to choke and kill them like it shows on TV." Ue You have to choke them like this, real and it's hard to kill them. They won't die." He said, When I killed when we killed Marty Jones, I had to get Dean to come in and help me. (indicating) BY MR.
Was he demonstrating his hands like you A Yes, sir. He demonstrated that he he had a hard time choking him.
On this trip he also told of difficulties, at Lake Rayburn, of burial
They took a piece of rug to put loose dirt on, to it from being around, and a hand and part of an arm of body came up, so they had to put a piece of board over bodies 2424).
On the same trip he told where the roll of found at the Corll house was gotten from Baylor College where Dean's father worked
Detective Mullivan then testified that Dean's told him he did work for the Medical College oe.
At the outset appellant hadsaid he could lead geant Mullican to where bodies were buried and that he where they were buried because he had helped bury several eee Copied from the holdings of the Texas State Archives these bodies 2362).
The car containing appellant met some officers Lufkin and others further down the highway in San County near St. Augustine about a two-hour drive northeast Houston over a hundred miles
To get to the location of the bodies, Sergeant made turns from one road to another at Wayne Henley's
The bodies were buried in a heavily wooded area in national forest no house or buildings around...a dirt Gravel road 2363).
Two bodies were recovered the night of August 9, to Lake Rayburn. They were probably a hundred yards (REZ S6o)8 One of these bodies appellant told Detective was Billy Wayne Lawrence 2365). The other he said thought was Homer Garcia 2366). Appellant said he helped bury them 2366). Appellant used a big log as a CR. aie These bodies were wrapped in plastic and had lime them 2367).
Around 10:30 to 11 pm. they went to the San County jail and checked Henley in there
About 6:30 am. on the morning of Friday, August Detective Mullican checked Henley out of the jail at Augustine, and he directed them to two more gravesites, were about half-way between the locations of the other Copied from the holdings of the Texas State Archives bodies 2368).
Appellant said he believed one was Homer Garcia 2369) The two of them were buried in the same hole 2369) Appellant and the officers then went to High 2370), which is on the end of Bolivar Peninsula, and eighteen miles from Houston twenty miles from Galvestion 2371). It took about an hour and a half to drive there Lake Sam Rayburn 2371,
Appellant told the officers there were several buried at the High Island Beach, some of which he had bury 2372). He had said he shot and killed Johnny
(sic) and choked Frank Aguirre and buried them at High
Appellant and the officers stopped at a cafe sandwich and coke 2428), leaving there about 12:30 to At the beach they met Houston Detective Ticker Detective Hammel and co-defendant David Brooks, as well Sheriff's officers from Jefferson, Galveston and Counties 2429).
Three counties meet on this long deserted beach 2429).
They took a black top road that Henley said led the beach. 2431).
Henley and Brooks talked together a few moments a large rock on the beach and then Henley told Copied from the holdings of the Texas State Archives Mullican he thought there was a body buried by the rock 2433).
He said several other bodies were scattered up and the beach, probably five or six, along in the same line this rock 2434). On both August and 9, he had he thought fobuny Delone (sic) and Frank Aguirre were at High Island 2439).
About 1 pm. Friday, August 10, 1973, they digging at High Island 2441). They found one body near theroce Thirty or forty minutes Later they found seventy-five or a hundred yards down fhe belch Ce 2442) a place Henley led them to, saying, Dig
think there is one here. I can smell "it"
They left High Island about 3:45 pm., August 10, and returned to Pasadena
The same conversation which led to the later recovery the bodies of Frank Aguirre and Johnny Delome was on the way back from High Island to Pasadena
They left the High Island beach and went at once to nearby filling station where the conversation was Cam 82):
During this conversation, appellant told about ways the victims were tortured prior to being killed
He said Billy Lawrence was kept about three days
chained or handcuffed to the board, because Corll liked particularly 2453).
Henley said he and Corll had used the rubber dildo Lawrence and all the other victims
Copied from the holdings of the Texas State Archives His words were that they had shoved it up butt" 2454).
They had pulled pubic hair out, one at a time, shoved glass rods about the size of a sickroom up their penises
They also shoved into the rectum a large bulled-shaped instrument, which was found with the dildo 2455). It is about ten inches long and an inch and a half in diameter 2455).
They boys were handcuffed to the board, sometimes a wall, with their mouths taped to they couldn't make noise while this was done
They would be split-eagled, face down on the board a loose manner so they could be turned on their side couldn't move off the board
The board used was the a previously found at Corll residence 2457).
In the same conversation appellant said he had killed Charles Cobble, Marty Jones and Billy Lawrence 2458). He said he shot Charles Cobblein the right and choked Marty Jones within a short time the same day 2459).
If there was more than one victim, one was put on side of the board 2460), the board flat on the each victim having his hands fastened to one end of the and his feet fastened to the other, so they lay partly their sides and partly on their stomach
Copied from the holdings of the Texas State Archives In this same conversation appellant told the officers that Cobble and Jones had been the two bodies that were tied together, found at the boat stall on the night of the 8th 2468).
In this same conversation appellant said he Homer Garcia 2479) by shooting him in i ee in house at 2020 Lamar 2483, Re He said (as of August 10) it had been about two since he killed Cobble and Jones and about four weeks he killed Garcia 2483).
He also said Billy Lawrence was killed there
He said he had killed Billy Lawrence about two before August 10, 1973
When the officers and Henley got back to Pasadena the night of August 10, 1973, the officers turned Henley to the jail personnel
He had never told Detective Mullican he wanted lawyer or said anything to the effect that he wanted to main silent 2490). Detective Mullican never saw mistreated in any way on these three days 2490).
never made any complaints in Detective Mullican's 2491). Henley was never threatened to have him make statement 2491-2). He was never promised anything 2492). He appeared to be sober. and rational
Clearly, on this tour of body recovery, at direction, he gave the officers much information which to be true and conduced to show his guilt as is required Serre Copied from the holdings of the Texas State Archives Art. 38.22 for admissibility of an oral The tour was continuous, the conversation that voluntarily carried on by appellant was a continuing and every relevant thing he said during this conversation admissible under Art. 38.22 Thus, not only was the. evidence so extensive and whelming that, as appellant concedes at page 233 of his any error of admissibility was harmless, but there simply no error. Appellant attempts to establish a violation of constitutional rights in that some additional details recalled by the police officers after they, first testified the motion to suppress.
He attempts to make ise details into additional new otral statements. This simply is not correct. There no multiple statements. There was one continuing and if there were more than one, they clearly break down statements before leaving for San Augustine County, on the there, while there recovering bodies, statements made connection with recovery of bodies at High Island, and on way back to Pasadena from High Island, all of which were ruled voluntary by Judge Hatten in his written which are in the record and are shown at Appendix A of brief.
Dr. Joseph Jachimezyk, Chief Baris County Examiner, testified 2768 et seq.) as did Dr. Jack 2939 et seq.). They performed autopsies on the A chart showing some of the testimony is SSeS eee ee Copied from the holdings of the Texas State Archives above, and for convenience is here Copied from the holdings of the Texadstate Archives Autopsy Testimony Harris County Record Victim's Name Date Died Where Body Medical Page Recovered Examiner Body Homer Garcia July 185.2973 Chest
2818 Feb.24,1972 High Island lation Frank Aguirre
head May 2972 Gag William Ray Lawrence 2801 Lake Rayburn San Augustine
2959 Strangled Dead one prior EONS Charles Cobble wounds head Rema? fe A 4500 27:89 4500 Marty Jones tio 2 weeks Auge Copied from the holdings of the Texas State Archives
Appellant engaged, on August 8, 9, and 10 of 1973, a continuing conversation with Detective Mullican as to tion of bodies, including the victims in the six cases at The bodies of these victims were recovered as a result of what appellant told this detective and Detective Two of them, Charles Cobble and Marty Jones, came the boat shed at 4500 Silver Two of them, Billy Lawrence and Homer Garcia, were covered by appellant's directions in the continuing tion near Lake Sam Rayburn.
Two of them, Frank Aguirre and Johnny Delome, were covered at High Island, as a result of directions given appellant during this continuing conversation.
Article 38.22 C.C.P. is completely met, so that rule of harmless error which appellant concedes would is not required.
This would be true even were the conversation broken into bits. Each portion brought forth additional which proved to be true and conduced to show guilt.
Appellant takes the incorrect position, at page 238 of hig brief, that it was a denial of fundamental fairness and process to permit testimony as to oral confession previously mentioned by them."
This would imply surprise, but there was no It is his theory, apparently, that after a list was pared, giving the general nature of statements by appellant, Copied from the holdings of the Texas State Archives suppress, on orders of the court, the State must thereafter strictly limited to the detail proved up by the For example, appellant makes complaint page 209 his brief) as
It should be noted at this point that neither the testimony of Mullican nor Smith, nor the supplemental offense report nor the State's list of statements made by Wayne Henley to be offered in evidence' contained any reference to either Frank Aguirre or Johnny Delome. The two surplus' bodies referred to by officers prior to their testimony at the were purportedly those of Mike Balch and the boy from Baton Rouge Raymond The alleged atrocities were committed on some of the boys' but there were no details relating any specific atrocity to any of the victims in the case on trial. Both Smith and Mullican later added the choking of Marty Jones totheir testimony even though their previous testimony, offense reports and statement of evidence contained no such specific reference."
The inference naturally drawn from this presentation that the State laid behind the log on this evidence, to prise appellant at trial, thus depriving him of a fair and there simply is no truth to any such At the motion to suppress, Defendant's Exhibit at 5427-8, had all these statements by appellant in as follows 5428):
Then Marty.Jones, me and Dean choked him and buried him in the boat stall. I shot and killed Johnny Delone, and we buried him at High Island. We choked Mark Scott and Frank Aguirre and buried them at High Island."
Clearly, appellant's claims do not go to fairness and due process, but are a diligent effort by counsel to find error where none Copied from the holdings of the Texas State Archives
ORAL STATEMENT FROM HIGH ISLAND TO PASADENA
The oral statement which was listed as Number 10 in the finding of facts by Judge Hatten, and there held is clearly admissible as being in compliance with of Art..38222 C.C.P., for three individuaiiiy reasons.
First, this was part of a continuous conversation appellant had with Detective Mullican and Detective extending from August 8, 1973, until the evening of August 1973, which conversation led to the of the of the six victims in the six cases at bar. All statements therein are admissible under Art. 38.22 Second, if the parts of this continuing conversation to be considered as divided, the record shows this actually occurred at High Island, near the beach, a continuation of the portion of conversation resulting recovery of bodies there two later recovered there directions of appellant and David Brooks being Frank and Johnny Delome). This is shown at 3181, line 10 to Mines 4 to 24, lines 2-25 and iw limes to 8 and 18 to/23, as State whether or not any bodies were covered on the 10th of August, 1973, that Friday, as a result of the directions of both, David Brooks and Dean Henley, all in Dean Henley's presence. I mean, Wayne Henley, all in Wayne Henley's presence. 3181, lines 10-14.
Yes. We discovered two bodies while I was And what time did you leave High Island to return to Pasadena with the Defendant, Wayne Henley?
Copied from the holdings of the Texas State Archives It was about 4:00 o'clock in the Now, as a part of this same conversation that to these bodies in High Island, and immediately after leaving there, and in route to Pasadena, what, if anything, did the Defendant. Wayne Henley, tell you concerning the manner in which any of these victims had met their death?
Mr. Gray: We object to this, Your Honor, oral statement made by the Defendant while arrest.
The Court: Dvdcrdlede Mr. Gray: Note our exception.
We stopped at a service station there at High Island and Was this the first thing that you Yes, sir. Immediately upon leaving the beach we drove to a service station and we stopped and I asked Henley to name all the individuals that were killed at the house at 2020 Lamar in Pasadena. 3182, line 4 to line 24).
In the same conversation at High Island, the afternoon of August the 10th, 1973, if anything, did the defendant, Wayne say, concerning how Homer Garcia had met death? 3186, line 20 to line THE WITNESS: He said that Homer Garcia was killed at the house, at 2020 Lamar, in Pasadena.
And he thought he was buried at Sam Rayburn, ang he said that he shot Homer Garcia in the head.
believed in the left temple. 3187, ieto (8) (Emphasis added).
As to this particular conversation that you had when you stopped at this filling station, immediately after leaving the High Island grave-site, did you make notes on these matters, have an opportunity to make notes on these Matters, at that time?
Yes, sir. I did." 3187, line to 23
Copied from the holdings of the Texas State Archives versation at High Island resulting in the later recovery there of the bodies of Johnny Delone and Frank Aguirre, and is admissible under Art. 38.22 Third, if this portion of conversation, which after the car bearing appellant and Detectives Mullican Smith left the beach, is to be segregate and all alone, it still qualifies under the oral requirements of Art. 38.22 The above underlined portion of appellant's to which Detective Smith testified at 3187, disclosed that Homer Garcia was shot in the left This is a statement made at approximately 4:15 pm. on afternoon of August 10, 1973, as the above quotations Two hours and forty-five minutes before this, to proof made by appellant's counsel in his cross of Dr. Jachimzcyk 2871) an autopsy was performed on body of Homer Garcia at San Augustine by Dr. Pruitt.
result was that Doctor Pruitt formally found a combination strangulation and suffocation was causeof Homer death 2871). This is consistent with Dr.
Thus, at the very ne this statement was made appellant at 4:15 pm., giving a precise description of the cause of aber Garcia's death shot in the left temple) incorrect conclusion as to these facts--later shown to in error--had been reached in an official autopsy Copied from the holdings of the Texas Sse Archives Appellant, in his written confession, had said he Homer Garcia in the head but not where in the head.
written confession was made to the autopsy by Dr.
Thus, this statement by appellant in this portion of the conversation, disclosed for the first time in the head Homer Garcia oo and again disclosed contrary to the then official finding that Garcia's was by gunshot.
The day after this portion of the conversation at 1:00 pm., August 11, 1973, three bodies including of Homer Garcia were received from San Augustine by Dr.
Jachimezyk, Chief Harris County Medical Examiner
Dr. Jachimezyk did not perform an autopsy on Homer his body number 73-3377, until 9:45 am., August 15, 2802). This was five days after the conversation in which appellant disclosed that he shot Homer Garcia in the temple.
Dr. Jachimezyk, when he performed the autopsy, the statement that Garcia was shot in the left temple, by appellant to and Millican,.to be He found two gunshot entrance wounds on the left side of the head, as well as one in the left chest 2802). He covered two mushroomed bullets from Garcia's head and not from the left back
These bullets were in State's Exhibit 42
This Exhibit was marked at 2495, connected to Copied from the holdings of the Texas State Archives number 73-3377 at 2804, admitted at
Fred Rymer, firearms expert 2982) testified as State's Exhibit 42 2930) with the name "Garcia" on 2994, lines 21-22). He concluded from his tests these three bullets were fired from State's Exhibit No.
2995). State's Exhibit No. 1 is the pistol from the sidewalk beside appellant at 2020 Lamar on August 1973, and admitted at 2246 with any objection waived 2246).
The customary manner of stating the rule as to compliance with the oral confession statute is to say that defendant disclosed facts not previously known by officers and that the information led to discovery of evidence which conduced to establish the defemtant is guilt. This, is not essential In Rhodes
State, 262 753 at 754, this peculiarly Texas rule, which then substituted even for voluntariness, was explained as follows:
The law seeks truth, and primarily rejects unwarned or involuntary or induced statements of those in custody, because of the danger to truth resulting from such situation; but when such statements lead to the discovery of facts establishing guilt, or when such statements then unknown to be true are verified by subsequent discovery of guilty facts showing them to true they are admissible."
This alternative means of satisfying the special ment of the Texas statute as to oral confessions although voluntariness and warning now also are In Nelson State, 21 1045, the confession Copied from the holdings of the Texas State Archives admissible although a co-defendant made the disclosure the defendant did. In Williams State,':28 233, the body of deceased had been discovered before disclosed its whereabouts. The true'' test was stated in the Williams case, supra, where by the facts discovered statement of the defendant was verified. In that this was done by finding a pool of blood with some chips it.
In Wilson State, 473 532, information as where a stolen car was left was held sufficient to make oral confession admissible, although another officer already found the car and impounded In the case at bar we have a statement by the that he shot the deceased Garcia in the head, the temple, he believed. This statement was made when tion of the already recovered body of Garcia had led pathologist to a-contrary conclusion and formal This statement by the defendant was later verified by a second pathologist.
There can be no doubt under these circumstances the statement made by appellant as to shooting Homer in the left temple complies with the statute, in conformity with the above cited cases.
514 749; and McGilvery State, Thus, for any of three reasons, this portion of conversation was admissible in evidence under Copied from the holdings of the Texas State Archives as appellant admits at page 233 of his Further, if it were not admissible, any error would be harmless.
Sirlsv. State, 726, 395 US. 250; Rogers State 468 89 SCt.
Appellant's points of error thirty-six to inclusive are without merit.
Copied from the holdings of the Texas State Archives
REPLY TO POINTS. OF ERROR FORTY-FOUR AND FORTY-FIVE
Appellant's Points of Error Forty-Four and follows page 240 of his
Appellant's oral and written confessions were involuntary under the totality of the circumstances and their use against him violated his right to due process, guaranteed to him by the Fourteenth Amendment to the Constitution of the United States.
Appellant's oral and written confessions obtained in violation of his rights under Sixth and Fourteenth Amendments to the Constitution of the United States because he was denied the assistance of counsel. In short, appellant now claims his statements not voluntary and that he was denied the assistance of At page 263 of his brief he cites McCandless
425 636 at 640, and correctly quotes the from that opinion by now Presiding Judge Miranda, of course, teaches that a heavy burden rests upon the prosecution to prove that a person in custody knowingly and in telligently waived his privilege against selfincrimination and his right to retained or appointed counsel.' 384 US. at 475, 86 SCt.
In that case, in which the conviction was there was a written waiver as to retained counsel but written waiver as to the right to appointed counsel, Judge Onion wrote 636 at 640-641 Such statements in a confession are factors to be considered in determining if the accused affirmatively waived his rights, Copied from the holdings of the Texas State Archives but it is not determinative thereof. See this writers concurring opinion in Torres
State, Tex. Cr. App., 422 Just as the mere signing of a boilerplate statement to the effect that a defendant is knowingly waiving his rights will not discharge the government's burden, so the mere absence of such a statement will not preclude as a matter of law the possibility of an effective waiver." United States Vesnoyer, While there is no written waiver as to the right to appointed counsel, we observe that at the time of his arrest it was that appellant was employed and owned a Chevrolet station wagon and no claim is made that appellant was indigent at that time, though some six months later the court did appoint him counsel. See Footnote 43, Miranda.
In Statesy. Grayj StEsd 1, was held that inasmuch as there was nothing to show that the defendant was indigent at the time of his arrest and interrogation, the failure of the police officers to advise him of the right of an indigent to have counsel appointed did not violate the defendant's constitutional rights against self-incrimination and would not render any statements he made to officers inadmissible.
Likewise, it would logically follow that if an accused not shown to.be indigent at the time, is fully warned as to his rights to the appointment of counsel if destitute, but informed as well of his right to appointed counsel if he "was unable to obtain counsel," then the failure to show a waiver of his right to appointed counsel does not deprive him of his constitutional rights or render any statement made inadmissible.
At the time of the confession the appellant a 55-year-old man with a high school education who had taken a business course by correspondence.
While it appears he followed the construction trade as a carpenter most of his adult life, the record shows he also worked as a motel manager in various parts of the United States. It further appears that before appellant signed the in the presence of five witnesses, he made and initialed nineteen corrections on said statement.
While appellant could not recall making the statement, it is noted that while testifying on the Copied from the holdings of the Texas State Archives motion to suppress as to the corrections made on the written statement he pointed out to the District Attorney that he was a better spelled than the prosecutor.
We find nothing in the record that support a finding that this appellant was threatened, tricked, or cajoled into a waiver.
There does not appear to be any. question of physical or psychological coercion.
the exact length of the interrogation is not shown, the record supports the conclusion that it was concluded Sunday morning, July 31, 1966, following the double set of warnings. There is further no showing of incommunicado incarceration which would mitigate against the finding of a valid waiver.
While the waiver" was not here demonstrated by the prosecution in the most.effective or desirable manner, we feel when the totality of the circumstances" are considered the evidence is sufficient to show that the state has discharged its burden and the appellant made a constitutionally permissible waiver as required by Miranda.
The trial judge overruled the motion to suppress and found the written confession voluntary.
McCandless, supra, has been cited and followed in humber of cases. A recent example is Harris State, 931 at 937, which was affirmed in an opinion by Roberts, with a concurring opinion by Judge Onion, who the McCandless opinion and finds there was a constitutionally permissible waiver of counsel. In the Harris case, defendant asked to talk to counsel and the questioning stopped. Later the appellant initiated the which led to the confession.
Judge Onion,: 516 931 at 937, When the totality of the circumstances' is considered, I conclude that the is sufficient to show the state Copied from the holdings of the Texas State Archives its burden and the appellant made a constitutionally permissible waiver as required by Miranda."
In the case at bar it is patent that when the of the circumstances is considered, appellant's written oral statements are voluntary, and made with constitutionally permissible waiver as required by Miranda.
In the first place, a close reading of the entire volume record makes it clear that if appellant had not had terrific inner force and compulsion to ease his by making disclosure as to the horrible crimes in which he participated, he might very well be physically free No one was quaselemeiic him or even had him in mind a possible suspect or even had in mind that the series crimes had been committed when appellant
blurted out that he said that he care who knew that he had to get it off his chest but he might know where there would some more bodies." Emphasis added Prior to this, Pasadena Police Officer Jamison given appellant, Timothy Kerley and Rhonda Fleming
the blue card warning 2254) which appellant appeared understand. Appellant appeared to understand the warning, not appear intoxicated, did not request a lawyer did Say he wanted to remain silent
The "blue card" warning which was read to appellant Officer Jamison is as follows 2255, lines 13-24 inclusive)
A Number one, you have the right to have a lawyer present to advise you either prior to any questioning or during any questioning.
Copied from the holdings of the Texas State Archives Number two, if you are unable to employ a lawyer, you have the right to have a lawyer appointed to counsel with you prior to or during any questioning.
Number three, you have the right to silent and not make any statements at and any statements that you make (sic) and probably will be used in evidence against you at your trial.
Number four, you have the right to the interview at any Patently, here, there is no question of appellant early informed of his right to have a lawyer appointed counsel with him prior to or during any It was just a few moments after this that "blurted" his first disclosure.
Officer Jamison, to whom appellant made that never asked him a single question that morning 2256, This occurred about
Later that morning, before any questioning of ant, a magistrate, City Judge Russell Drake, gave the another warning of his rights, as follows 2274, line 18
A On this date, Elmer Wayne Henley, Jr., a white male, age seventeen, personally appeared before me in the custody of Lawrence, Detective Sergeant, Police Officer, Pasadena Police Department, and I gave the said arrested person the following warning:
Elmer Wayne Henley, Jr., you have accused in the offense of murder. You have right to remain silent. You have a right to retain counsel. You have a right to have an attorney present during interview with peace officers or attorneys representing the State.
You have a right to terminate that interview Copied from the holdings of the Texas State Archives with police officers or attorneys representing the State at any time. You have a right to request appointment of counsel if you are indigent and cannot afford counsel. You have a right to have an examining trial. You are required to make any statement and any ment you make may and probably will be against you upon your trial.
The above statutory warning given by Judge Russell Drake, Pasadena Municipal Court, Harris County, Texas, on the 8th day of August, at 10:55 am." Signed Russell Later appellant told Detective Mullican he Judge Drake's warning 2304). He did not request the aid a lawyer. There was a brief conversation in which volunteered to take Detective Mullican to the boat shed recovery of some bodies which appellant then said Dean had told appellant about
Next morning, after the recovery of bodies at the stall was well underway, appellant was again warned
fine iL to 2346 A That he had a right to retain counsel, aright to remain silent, and a right to have an attorney present during an interview with any peace officers or attorneys representing the State, a right to terminate the interview at any time, the right to request appointment of a counsel if he could not afford counsel, a right to Examining Trial and he was not required to make any statement and any statement he made be used in evidence against him.
And you gave him that Yes, sir.
At approximately what time did you give this legal warning on August the 9th?
This statement was taken at 11:55 AM. It begun at that time, on August the And you warned him prior to reducing the Copied from the holdings of the Texas State Archives ment to writing?
Thereafter, appellant made his written which, inter alia, shows at its beginning and end, following 2351, line 12 to 7 lines 12-19):
AM. Elmer Wayne Henley. Taken the Pasadena Police Department, Harris County, Texas, the 8th of August, 1973. At 10:55.
Elmer Wayne Henley, at (sic) o'clock was
(sic) Judge Russell Drake, at Pasadena, County, Texas, at his office, who informed me of the accusations made against me, that I had a right to retain counsel, I had the right to remain silent, I had the right to have an attorney present during my interview with peace officers or attorneys present during my interview with peace officers or attorneys representing the State, that I had a right to terminate an interview at any time, I had the right to request appointment of counsel if I can not afford counsel.
I have the right to an Examining Trial, I am.not required to make any statement and any. statement I make may be used.against me. I have now been warned by Detective Mullican, the person to whom I am making this statement, was so warned by Detective Mullican prior to any questioning by police while I was under arrest: one I have the right to have a lawyer present to advise me either prior to any questioning or during any questioning.
Two, if I am unable to hire a lawyer, I have the right to have a lawyer appointed to counsel with me, prior to or during-any questioning. Three, I have the right to remain silent and not make any statement at all; that any statement I make be and probably will be used against me at my trial;
and, four, I have the right to terminate the interview at any time.
I do not want to consult with a lawyer before I make this statement. I do not want to remain Silent and do now freely and voluntarily waive my right to a lawyer and remain silent and make the voluntary statement.
My name is Elmer Wayne Henley. I am a white male, seventeen years old, was born on 5-9-56, Copied from the holdings of the Texas State Archives Houston, Texas. I have completed the grade in school and can read and write the English language. I presently live with my mother at 325 West 27th Street, in Houston, Texas.
OK While making this statement, I have not asked for nor wanted the presence or advise (sic) of lawyer. At no time during the making of this statement did I ask to stop or want to stop making this statement.
I have read the 2 page(s) of this statement, each page of which bears my signature, and the facts contained there in are true and correct.
These facts were also proved before the court at motion to suppress evidence; the original statement by ant, containing the warning and recitation of waiver, there being in evidence as Defendant's Exhibit 7 at
After this statement in writing was made, offered to "willingly guide" Detective Mullican the Lake Sam Rayburn area where the bodies of Billy and Homer Garcia were recovered by reason of his and High Island where, as a result of instructions by ant and David Brooks, the bodies of Frank Aguirre Delone recovered).
At the motion to suppress, appellant took the and, On cross-examination, testified 5363, lines as follows:
None of these officers ever used any physical abuse against you? Did they hit you, strike you, anything of that nature?
Copied from the holdings of the Texas State Archives A None that I know of or Appellant testified that he signed the written fession 5326-7).
He testified 5328, lines 4 to (8) as Would you look this over, the contents of and read it, please, to yourself.
That's the statement you made Detective Mullican, isn't it?
A Well, it would appear Appellant testified at 5334, line 4 to
(By Mr. Vance) Well, you stated a while ago that Detective Mullican wanted you to read this and you took it and you scanned over it at that time. In other words, you read rapidly; isn't that a fair No, six. Scanned and read rapidly are different things.
Well, what did you do, just scan it past you then or just try to play like you were reading it so Mullican wouldn't be upset with you not reading it to see if it was I couldn't go into that, what I did at that time.
You don't remember; is this one of the you don't remember?
I didn't read that word for word as far as can recall.
You went over it and saw the general of it at that time, didn't you, as to was in it when you scanned it? You did didn't you?
All right. And you saw this warning up at the top that had been given to you by Detective sows Copied from the holdings of the Texas State Archives Mullican and again recited in this didn't you?
A I saw the warning at the As appellant's brief notes, at page 260 thereof, belligerent on cross-examination, at the motion to he did make reluctant admissions.
He there stated, for example, at 5337, tines 13 (By Mr. Vance) But you don't remember the uniformed officer giving you a warning; you don't remember Detective Mullican giving you a warning; you don't remember Judge Renfro giving you a warning and you don't remember Judge Drake giving you a warning; is that your testimony?
Appellant testified, at 5340, lines 15 to (By Mr. Vance) How did the officers discover the bodies the night of the 9th by Lake Sam Rayburn?
How did they know where to Somebody told them.
Well, do you remember, or is this one of times you blacked out and you can't A I don't remember running through the Appellant testified at 5345, lines 2 to You don't recall the warning at all from Renfro at the start of the morning of the NO; Sit, 2. oon recall But you do recall the ham and eggs and Copied from the holdings of the Texas State Archives a pretty good sized breakfast the morning the 10th?
A They made a big to-do over Appellant testified at 5346, line 11 to
I believe you kept saying over and over on direct examination that every chance you got you told these officers you wanted to call your mother and they kept putting you off on this. Is that a fair statement?
That's a fair statement of it, I guess.
But you called and talked to your mother on the night of the 8th or evening of the 8th.
She visited you the morning of the 9th.
called her and talked to her about 2:30 pm.
on the 9th. And you called her later that night from the jail in San Augustine.
you saw her one time and make two other separate phone calls to her on the 9th of August, didn't you?
Well, would you like to start off from the very beginning and take those one by one?
You saw her on the 9th and made two calls to her on August That isn't the first one you Huh?
That isn't the first one you Well, did you call her on the evening of Yes, sir. I believe Did you see her on the morning of the Not that I can recall.
But you don't know why she would come in and make that up. Is there any reason why she would come in here and make up a story and the jail people make up jail records your having seen her for fifteen minutes the morning of the 9th?
Copied from the holdings of the Texas State Archives MR. GRAY: We object to that, Honor. It calls for a conclusion on the of this witness.
(By Mr. Vance) Okay. So you don't remember her coming to visit you on the morning of the 9th. Do you remember calling her around 2:30 the afternoon of the 9th prior to going from the Pasadena Police Department to the Houston Police Department?
Do you remember having called her and talked to her again that night from San Augustine, being allowed to use the phone, call her and talk to her at that time?
I remember that I did get to call:
So your answer to that question is yes;
A No, sir. My answer was I remember I did to call her.
Well, you talked to her on the night of 9th, didn't you?
Are you telling me that or asking me I am asking you that.
Well, I guess so, since I MR. VANCE: Your Honor, could this witness be instructed to answer the question rather than engage in these arguments.
THE COURT smeitny to answer the THE WITNESS: Well, all (By Mr. Vance) Did you call your mother on night of the 9th from San Augustine I wecall that I did,; iyee, You called her again on the 10th, didn't you and again saw her the night of August 10th;
Copied from the holdings of the Texas State Archives Detective Mullican testified at the motion to 5380 et seq.) and contrary to appellant's claim at 261 of his brief, it was not a general denial but denials of appellant's claims.
At 5380, lines 13 to 5383,-line 6, Mullican testified:
All right. Detective Mullican do you ever recall the Defendant, Wayne Henley, complaining of any ailments of any kind other than the time he asked to see a doctor up in San Augustine County jail on the night of the 9th of August?
The only time that he complained of any ailments, he told me that at times all this stuff he had bottled up in him made him feel like his chest was tight and that sometimes he thought he might be going to have a heart attack.-:
All right. Now, when do you recall him specifically mentioning that he felt tight in the chest? How many Well, he didn't How many occasions, famst Only this first occasion, and he was referring to not at that particular time but some time in the past that he had felt like that.
All right. Now, when was that in reference to That was on the morning of the Was that during the time that the written statement was being taken or ping Toes before that?
It was prior to the written statement being taken at the time he was making his oral statement.
All right. Now, did he say that he felt way at that varticular time, or what was context of the conversation?
No, sir. After he had begun to tell me these things, he said that in the past Copied from the holdings of the Texas State Archives this bottled up in him he had felt like sometimes it bothered him so bad that he felt like he might be going to have a heart attack.
So he was talking about in the past he had felt so bad about all this that he thought might have a heart attack?
Did he complain of having chest pains construction or anything in his chest morning at that time?
No, sir, not vat that time.
Did you say anything to him with regard to this condition that he had had in the past?
Yes, sir. I told him that having that type of information bottled up inside him that I wasn't surprised that he felt like that.
Did you ever tell him that it would be your opinion that he would have a heart attack if he didn't give a statement or anything of that nature?
NO, sixes Do you recall any other times that he up the matter of having any pains in his chest or going to have a heart attack, either he felt that way at that time or felt this way in the past?
No, sir.. That's the only time that I recall it being brought up.
So, in other words, as to any present ailments that he might be under, what, if times did he complain about feeling bad in way?
The only time that he complained of feeling bad was at San Augustine County at which time he was furnished a doctor.
5384, lines 3 to 25, Detective Mullican Did you ever make any threats to him of Copied from the holdings of the Texas State Archives kind?
Did you ever make any statement like, If you don't give us a statement or if you don't get this off your chest, I am going to take you over to the Houston Police Department and they are going to give you a.lie detector test and they are going to grill you or they will question you.or make inquiries about this thing until you do.give a statement"? Did you ever say anything anywhere similar to that?
AY Now. sar nothing At sallsimilar to Did you ever tell Wayne Henley that he did need a lawyer at any time?
And I believe you stated before at no time he ever ask you to let him have a lawyer or that he wanted to have a lawyer down there;
A No, sir. He was allowed to make any phone that he wished to call an attorney. He requested an attorney and was refused.
At 5385, line 12 to 5386,: line 20, Mullican testified:
Incidentally, was he given. cigarettes at when he would want to smoke?
A Yes, sir. He was furnished cigarettes the time.
Did he smoke very Yes, sir, quite a bit.
Did he smoke his own cigarettes or people's
A The first day there was a package of cigarettes that belonged to Lieutenant Goad in the office.
He smoked those the first day. Then after that, ESSE NIN eres eee Copied from the holdings of thePckas StateArchives myself and Detective Smith bought for him.
Did you ever take away his cigarettes you bought them from him?
A No, sir. The only time that he wasn't allowed to have cigarettes was when he was confined in the actual cell. That's a rule of the police department.
Fe) He never complained of any asthmatic attacks or conditions or chest conditions while he was smoking all those cigarettes?
Did you ever hear anybody threaten Mr.
in your presence on the 8th, 9th or 10th August?
A No, sir, nobody at MR. VANCE: That's all we Your Honor.
the cougepeim the Fact which is Appendix hereof, and has been ordered added to the record on appeal Judge Dial on joint request of State and appellant, found statements were voluntary, and that appellant made a voluntary knowing and intelligent waiver of his right to have a present.
The State readily agrees that McCandless
425 636, states law here applicable and simply that under the totality of the circumstances in this the appellant's confessions, written and oral, were and he made a constitutionally permissible Copied from the holdings of the Texas State Archives Further, as appellant recognized at page 233 of brief but under these points does not), if any part of evidence in this case was inadmissible, it would be error.
Points of Error Forty-Four and Forty-Five are merit.
These six convictions should be Copied from the holdings of the Texas State Archives Respectfully submitted,
CAROL VANCE DISTRICT ATTORNEY RRIS COUNTY, TEXAS BROUGH a SISTANT DISTRICT ATTORNEY HARRIS COUNTY, TEXAS DON LAMBRIGHT ASSISTANT DISTRICT ATTORNEY HARRIS COUNTY, TEXAS LUCIEN CAMPBELL ASSISTANT CRIMINAL DISTRICT BEXAR COUNTY, TEXAS DOUGLAS YOUNG ASSISTANT CRIMINAL DISTRICT BEXAR COUNTY, TEXAS COUNSEL FOR APPELLEE
Copied from the holdings of te Fexas State Archives
This is to certify that a true copy of the foregoing Appellate Brief was mailed by United States Mail, postage paid and affixed thereto, to Hon. Will Gray, 1140 Texas and Trust Building, 6161 Savoy Drive, Houston, Texas counsel for appellant, on this, the day of May, gab.
SISTANT DISTRICT ATTORNEY HARRIS COUNTY, TEXAS 500 CRIMINAL COURTS BUILDING 301 SAN JACINTO STREET HOUSTON, TEXAS 77002
228-8311 Ex toga Copied from the holdings of the Texas State Archives Appendix A
CAUSE NO. 198,892 THE STATE OF TEXAS: IN THE 176TH DISTRICT COURT
ELMER WAYNE HENLEY, JR. OF HARRIS COUNTY, FINDINGS OF FACT ON VOLUNTARINESS ADMISSIBILITY OF ORAL AND WRITTEN
On the 14th day of January, 1974, came to be heard, pre-trial, the Defendant's motion to suppress oral and written statements of the Defendant, Elmer Wayne Henley, On inquiry by the Court, as to what statements the Defendant the State intended to offer into evidence, on request by the Court that response to this inquiry be made in writing, the District Attorney presented to the Court to counsel for the Defense, the following
STATEMENTS MADE BY WAYNE HENLEY TO BE OFFERED IN EVIDENCE
1. Oral statement made to Timothy approximate time 8:00 am., August 8, 1973; location Lamar, Pasadena, Texas.
General Nature of Wayne Henley stated to Timothy Kerley, prior to the arrival of the Pasadena police at the Corll house, that he, Henley, had killed four or five persons in the past. Henley further stated that he had killed before, and that he could have gotten fifteen hundred dollars for Timothy Kerley as a murder victim made around August 7, 1973).
2. Oral statement made to Pasadena Officer Jamison; approximate time 8:30 am., August 1973; location 2020 Lamar, Pasadena, General Nature of statement:
Wayne Henley told Officer Jamison, the first Pasadena police officer to arrive on the scene at Corll residence that he, Henley, had to get it off his chest, that is the fact that Corll had told him of some bodies that were buried in a boat stall. Henley further told Jamison that the pistol, which was recovered from the scene, was same pistol that he had shot Corll with.
3.. Oral statement made to Detective Mullican; approximate time 1:00 pm., August 8, 1973;
tion Pasadena Police General Nature of Wayne Henley stated to Detective Mullican that Dean Corll had told him about a warehouse that he had over on Hiram Clarke where he had killed some boys and buried them after he had had sex with them. Wayne Henley did not know how many boys were buried there but he knew the location of the boat stall and was willing to take officers to the location of the boat stall where the bodies were buried.
He described the boat stall as well as the contents of the boat stall. Wayne Henley specifically named David Hilligiest, Charles Cobble and Marty Jones as ae among the deceased at that location. ma a approximate time 12:40 pm., August 9, 1973; location Police Department.
5. Oral statement made to Detective Detective Sid Smith, Detective Willie Young; approximate 4:00 pm., August 9, 19733 somewhere between on and San Augustine, Texas.
General watts of Detective Mullican asked Wayne Henley what would have happened had they been stopped by a highway patrolman or a police officer for speeding or traffic violation and the officer looked in the van and dis covered a body. Wayne Henley's reply was that they would not have seen a body as the body would have been concealed in a body box that Dean Corll had built specifically for the purpose of transporting bodies from the place where they were killed to the place where they were buried: At that time he described the body box to Detective Mullican, stating its location. Subsequently the box was recovered and hair samples were recovered from the box belonging to Wayne Henley and the victim in this cause, Charles
6. Oral statement made to Detectives Smith, Young, Paulk, Porter and Baker; approximate time 6:30 p-m., August 9, 1973; location San Augustine National Forest, approximately four to five miles from Broaddus, Tears General fatuine of Wayne Henley led officers to a location in the San Augustine National Forest on a dirt road where he pointed out two locations where bodies were buried.
Officers went to those locations. Digging operations began;
vodig. were recovered where Wayne Henley directed officers to dig.
We Oral statement made to Detectives Smith, Mullican, Young, Paulk, Porter and Baker; approximate time 7200 to 8:00) am.; August 10, 1973; location San Augustine A pesemg Forest, approximately four to five miles from exas.
General Nature of Wayne Henley directed officers to the same general location where the first two bodies were found in San Augustine National Forest. At that time he located two additional graves for officers. Digging operations began; two more bodies were discovered. Digging operations ceased at approximately 9:30 to 10:00 that 8. Oral statement made to Detective Detective Smith, Detective Young, Detective Paulk, Porter and Detective Baker; approximate time 1:30 to 2:00 pm;
August 10, 1973; location High Island General Nature of Wayne Henley and David Brooks together agreed and attempted to locate bodies buried on that beach of victims killed by Henley, Corll and Brooks. Henley and together located a large rock on the beach, stating officers that a body was buried under the rock.
operations began and a body was recovered from beneath the rock.
9. Oral statement made to Detective Mullican, Detective Smith, Detective Young, Detective Baker, Detective Paulk, Detective Porter; approximate time 3:00 to 4:00 pm., August 10, 1973; location High Island Beach.
General Nature of Both Henley and Brooks stated these officers that there. were a number of bodies located on this beach, that they could not pinpoint the exact', location of each grave; but they did point out an area somethree long on the beach within which they stated bodies were This would have been in Chambers County and Jefferson beginning at the Galveston County line, at which time had heavy equipment and machinery moved in to complete Gigging operations. As a result, five more bodies located. 10. Oral statement made to Detective Mullican and Detective Smith; approximate time somewhere between 4:00 and 6:00 pm., August 10, 1973; location between High Beach and the Pasadean Police General Nature of Statement:
am Detectives Mullican and Smith left High Island Beach with Henley still in custody at about 4:15 on 8-10-73, enroute back to Pasadena. During this trip which lasted about one hour and fifteen minutes, Mullican and Smith talked to Henley about specific incidents in which he had personally participated and which had occurred at the house on Lamar in Pasadena. Henley stated that he had personally killed or assisted in killing Billy Lawrence and Brooks assisted in killing him Charles Cobble Marty Jones Homer Garcia Mike Balch the boy from Baton Rouge. Henley went on to say that he remembered burial sites as follows: Lawrence at the Sam Rayburn site, Cobble and Jones buried together at the boat stall, Homer Garcia and Mike Balch buried together at the Sam Rayburn area, and the boy from Baton Rouge buried at Rayburn area. Henley says Cobble was shot by him in the head, Jones was choked by him and Corll, Garcia was shot by Henley, Balch was choked by Henley and Brooks and that he could not remember how they killed the boy from Louisiana. He went on to say that Brooks was present and assisted in most of the killings and helped to bury.all of them.. At this time Henley also related to Officers Mullican and Smith details of atrocities committed on some of the boys. He said that he and Brooks and Corll would pull their public hair out slowly, shove glass rods up their penis, and, that they castrated some of them.
particularly remembered Billy Lawrence, saying that they had kept him three or four days because they liked him.
further stated that most all of the victims were beaten severely by Corll, and they Corll, Brooks and Henley) used the rubber artificial penis which was seized as evidence the house on Lamar was used to put in the rectum of most Wien the victims. Also, Henley renaviced that it was not easy to choke a person to death like it is shown on TV. He said that it was hard to do and took a long time for a person to die when he was choking them, and that he had to get Corll or Brooks to help him on most of the choking victims.
The above list does not include by the Defendant relevant to the voluntary nature admissibility of the Defendant's written and oral if same becomes a jury issue.
Thereafter, to this list was added the purportedly made by Defendant fimer Wayne Henley, Jr., August 8, 1973, relating substantially the same facts encompassed in the oral statement which is the third item the above list.
From January 14, 1974, until and including 1974, pre-trial, in open court; with the court present, the District Attorney pyecone the Defendant and with his counsel of choice, Hon. Will Caer at all present; his counsel of choice, Hon. Edward Pegelow, most of the time; and his counsel of choice, Hon.
Melder, present part of the time, and with no request by the Defendant at any time for any delay by reason of absence any attorney from the courtroom, and with Defendant's personally stated willingness to go forward with said Charles Melder absent, the Court heard.evidence adduced the Court bearing upon the facts and circumstances the arrest of said Defendant and the prior and making of the alleged oral and written At the Baicatieiion of said hearing, the Court observed the manner and demeanor of the witnesses, and without regard to the truth or falsity or materiality of the of any of said statements, and with no determination here as to compliance of said coral statements with Article of the Code of Criminal Procedure of Texas, and Court having in no way limited the evidentiary offering arguments of the Defendant at said hearings, the Court now from the evidence, beyond a reasonable doubt, as a matter law, that subject to a determination of materiality, and, FAI to oral statements made after arrest, subject to a finding of compliance with Article 38.22 of the Code of Criminal Procedure of Texas, each of the statements in the above list submitted by the District Attorney well as the said affidavit given by Defendant on August.
1973, which is State's Exhibit No.. 4 at the above noted ing, is admissible in evidence, each having been voluntarily made by the Defendant, and Defendant having received benefit of all applicable constitutional During said hearing, said affidavit made by Defendant on August 8, 1973, was used by said Attorney in ar cue examining said Defendant, Elmer Henley, Jr., but the Court here expressly states that no consideration was given by the Court to questions and given when said affidavit was so employed; and the disregarded said testimony in making the herein findings fact and law. In support of the Court's action, the Court states the following findings of fact beyond a reasonable doubt made prior to the above finding of law:
The oral statements which are ie No.
in the above Sr enbint teed by District Attorney were made voluntarily, at a time when the hependaie was not custody, was not detained and was not under any form restraint, and they were made when no Peace officer was sent. The Court finds that Article 38.22 of the Code recast Procedure and the decision of the United Supreme Court in Miranda Arizona, is not applicable these statements and these statements subject to when offered are admissible in evidence.
The oral statement which is listed as No.
in the above list submitted by said District Attorney volunteered by said Defendant to Pasadena Police Jamison. It is a statement made voluntarily, Spontaneously, but while said Defendant was nea and of his actions, and is res gestae of the arrest, and subject to its materiality when offered is admissible in Further, such statement was made after said officer read to said Defendant the following le You have the right to have a lawyer present to advise you either prior to any questioning or during any questioning.
2. If you are unable to employ lawyer, you have the right to have a lawyer appointed to counsel with you prior to or during any questioning, and
3. You have the right to remain silent and not make any statement at all and, that statement you make may and probably will be used in evidence against you at your trial.
he You have the right to the interview at any time.
Prior to making the said statement, Defendant made a voluntary, knowing and intelligent waiver his right to have a lawyer present during the making of the statement, to his right to remain silent, and to his right terminate said interview, and was aware that said could and probably would be used against him. He was that he could have a lawyer appointed to represent him if he was indigent) and voluntarily, knowingly and intelligently waived his right. Prior to the making of all other one written statements which are listed as No. 3 et. seg.
the above list submitted by said District Attorney, City Judge Drake at approximately 10:50 am., August 8, 1973, at the Pasadena police station in pasadee Texas! warned said Defendant, Elmer Wayne Henley, he maeeander detention for investigation which might lead a formal: charge of murder against him, and gave him the following warning:.
You have a right to retain counsel, you have a right to remain silent, you have a right to have an attorney present during any interview with peace officers or attorneys representing the State, you have a right to terminate an interview with peace officers or attorneys ing the State at any time, you have a right to request the appointment of counsel if you are indigent and cannot afford counsel, and you have a right to have an examining trial."
You are not required to make any statement and any statement you make may and probably will be used against you on your trial."
At the time of the giving of each of the ments listed as No. 3 to No. 10, enclosed in the above list submitted by the District Attorney, and the affidavit said Defendant signed August 8, 1973, said Defendant Wayne Henley, Jr., was seventeen years of age, had the eighth grade, had passed a high school graduation equivalency test given by United States Navy recruiter, in good health, in good physical.condition, of sound and was aware of what he was doing when he imported information given in each of said statements, and when he Signed each of said written instruments to wit, affidavit dated August 8, 1973, and said written madeto Detective Mullican, dated August Oye?
At no time relevant to the making of the and written statements herein noted did the said Elmer Wayne Henley, in complain of any exhaustion, or thirst.
Each of said statements was mac by said Defendant, Elmer Wayne Henley, Jr., freely and voluntarily without compulsion or persuasion, and he knowingly, gently and voluntarily waived his right to an examining his right to have lawyer present to advise him'either to or during any questioning, his right to have a ee tiae appointed to counsel with him prior to and during any ing, his right to remain silent and not make any statement all and in the full realization that any statements he made could and probably would be used deednat him at his trial.
At no time from his arrest until time of trial did said Defendant, Elmer Wayne Henley, Jr., complain to any police officer, judge, sheriff, deputy sheriff, clinical psychologist or psychiatrist, or any other or authority, that he was suffering hallucinations, or he had been abused, mistreated, forced, threatened, or promised anything to make or sign any of said and he rely and voluntarily stated at various times this period that he was being well treated by law enforcement officers who had him in custody.
The Court makes these further specific findings to the statements:
The affidavit made by Defendant Elmer Wayne Henley, Jr., on August 8, 1973, was made after he had the above noted warnings by said Judge Drake, and after had freely and voluntarily, without compulsion or persuasion, knowingly, intelligently and voluntarily waived his in connection with the making and signing thereof, and the same was voluntarily and without persuasion or compulsion, signed by said Defendant. Said affidavit is a written ment made in compliance with the voluntariness of Article 38.22 of the Code of Criminal Procedure of Texas and the holdings of the United States Supreme coure in Miranda Arizona, 381, US. 436
However, said affidavit does not. therein show that the accused has at some time prior to the making thereof received from the person to whom the statement is made, from the magistrate, the warning statutorily required, is, not as a written statement admissible, for any purpose, including impeachment.
The oral statement made by Defendant Detective Mullican on August 8, 1973, which led to the of said affidavit, is, however, in all things subject to materiality and a showing of compliance Article 38. 22 ti)(i) of the ode of Criminal The written statement made August 9, 1973;
Detective Mullican, was made by Defendant Elmer Henley, Jr., freely and voluntarily, without compulsion persuasion, and rowinely, intelligently and qotithicanety waived his rights in connection with the making and of said written statement. Said statement shows therein
accused at a time prior to the making thereof received said, Detective Mullican, the person to whom the ment was made, a warning that he, said Defendant, had a right to have a lawyer present to advise him either prior to during any questioning, thet if he was unabi to employ lawyer, he had a right to have a lawyer appointed to with him prior to and during any questioning, that if he was unable to employ a lawyer, he had a right to have a lawyer appointed to counsel with him prior to and during, any tioning, that he had a right to remain silent Bd make any statement at all and that any statement ie made could probably would be used in evidence against him at his and that he had a right to terminate the interview at any time. a i The statement also shows that a Magistrate, Judge Russell Drake, had previously given the said Defendant the warning by said Magistrate herebefore quoted in EE of fact and law.
The said statement shows mereine and Gourt now finds from all the evidence at said hearing that said Defendant knowingly, intelligently and without threats, fear, persuasion or any form of coercion duress and while sane, lucid, and in command of his waived the right to consult with a lawyer before he made statement; and waived the right to remain silent wedtnutarily made and signed said The Court finds this written statement subject. to materiality is admissible an re Entered this ea 37.3 day of iDia 176th District PRODUCED FROM THE Harris County,
Ray Hardy, District Clerk of Harris County, Texas, do hereby certify that the foregoing is a true and correct copy of the original record, now fn my lawful custody and Posseszion, as appears Oly.
yecord In Vol. Lines Pi Minutes of said court on file inav ae. ane eae RAY.-HARDY, olstater CEER Heats. County; Texas
REPRODUCED FROM HOLDINGS OF THE oe
STATE OF TEXAS COUNTY OF HARRIS
1, Rayy Hardy, District Cicrk of Harris County, ly Texas, do hereby certiy iat aay gor Shurtorenoing is res lag true and coitert cer cf tes Orivinal tecord, now in my lawt.! curtis.) on (3): ession, as appears of 4 record in Vol. Ware Minutes of said court on file in Bhs.
Witness my aid seal of office, this (2) jae