Appeal from HARRIS County.
Elaine Brady and Jim Skelton, Houston, for appellant.
Carol S. Vance, Dist. Atty., James C. Brough and Donald Lambright, Asst. Dist. Attys., Houston, and Robert Huttash, State's Atty., Austin, for the State.
Before Dally, W. C. Davis and Clinton, JJ.
This is an appeal from a conviction for murder with malice under the former penal code. Art. 1256, V.A.P.C. (1925). Punishment was assessed at imprisonment for life.
Appellant contends that the evidence is insufficient to support the conviction, the law of principals was erroneously submitted to the jury, extraneous offenses were unlawfully admitted in evidence, the admonitory charge concerning the extraneous offenses was improper, an oral confession was admitted in violation of Art. 38.22, V.A.C.C.P., a charge on circumstantial evidence should not have been submitted to the jury, and the trial court erroneously refused appellant's requested charge on the law of accessories.
The indictment alleges that on or about July 10, 1973, appellant
". . . unlawfully with malice aforethought kill(ed) William Ray Lawrence by strangling him with a cord and in some manner and by some means, instruments, and weapons to the Grand Jury unknown."
In its charge, the trial court instructed the jury on the law of principals in the following manner:
"All persons are principals who are guilty of acting together in the commission of an offense. When an offense is actually committed by one or more persons, but others are present and, knowing the unlawful intent, aid by acts or encourage by words those actually engaged in the commission of the unlawful act, such persons so aiding or encouraging are principals and may be prosecuted as such. Mere presence alone will not constitute one a principal.
"Therefore, if you find from the evidence beyond a reasonable doubt that Dean Corll and Elmer Wayne Henley, Jr., or either of them, in Harris County, Texas, on or about the 10th day of July A.D. 1973, did then and there unlawfully with malice aforethought kill William Ray Lawrence by strangling him with a cord and in some manner and by some means, instruments, and weapons unknown, if you do so find, and that the defendant, David Owen Brooks, was then and there present at the time and place of the killing and knew of the intent, if any, of said Dean Corll and Elmer Wayne Henley, Jr., or either of them, to kill the said William Ray Lawrence and encouraged by words or aided by acts the said Dean Corll and Elmer Wayne Henley, Jr., or either of them, in the commission of said act, then you will find the defendant, David Owen Brooks, guilty of murder with malice aforethought as charged in the indictment.
"Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant.
"You are further instructed that Defendant's knowledge of the crime coupled with his mere presence at the scene of the killing, if any, would not constitute him a principal, and if you should find from the evidence beyond a reasonable doubt that Dean Corll and Elmer Wayne Henley, Jr., or either of them, did then and there voluntarily kill the said William Ray Lawrence, as aforesaid by strangling him with a cord and in some manner and by some means, instruments, and weapons unknown, but you further find and believe from the evidence, or have a reasonable doubt thereof, that the defendant, David Owen Brooks, did not aid by acts or encourage by words the said Dean Corll and Elmer Wayne Henley, Jr., or either of them, in the commission of said killing then you will find the defendant, David Owen Brooks, not guilty."
William Ray Lawrence, who was fifteen years old, was last seen alive by his father, James Lawrence, on June 4, 1973. That night, William called his father and told him that he was going fishing with friends, whom he would not name, and would return later in the week. On June 11, 1973, James Lawrence received a letter from his son postmarked June 8, in which William indicated that he was seeking employment in Austin and would return later that summer.
The nude body of the deceased was found buried near Lake Sam Rayburn on August 9, 1973. The body was wrapped in plastic sheeting and covered with lime. Dr. Jack Pruitt, a pathologist, testified that the cause of death was strangulation by means of the cord found tied around the neck of the body.
Detective Jim Tucker testified that he took an oral statement from appellant on the morning of August 9, 1973. On August 8, Elmer Wayne Henley, Jr., had shot and killed Dean Corll in Pasadena and had subsequently led police officers to a boat house in Houston where eight bodies had been found buried. In his statement, appellant told Tucker that Corll had told him that he, Corll, had killed two boys and buried them at the boat house. Appellant also told Tucker of his discovery, during a visit to Corll's apartment, of two nude boys tied to Corll's bed. Finally, appellant told Tucker that he had met Corll when he was in the sixth grade (appellant was eighteen at the time he gave the statement), that Corll had engaged in homosexual activities with many boys, including appellant, that he had introduced Henley to Corll, and that he had lived with Corll intermittently. In this statement to Tucker, appellant said nothing to indicate that he had been present at any murders committed by Corll or Henley.
On August 10, 1973, appellant executed two written confessions, both of which were admitted in evidence. The first reads, in pertinent part:
"I came to the police station on August 9th in order to make a witness statement about what I know about Dean Corll. I came down of my own free will and I gave that statement to Det. Tucker. In the statement what I said was partially the truth but I left out the fact that I was present when most of the killings happened . . . I was in the room when they happened and was supposed to help if something went wrong.
"The first killing that I remember happened when Dean was living at the Yorktown Townhouses. There were two boys there and I left before they were killed but Dean told me that he had killed them afterwards. I don't know where they were buried or what their names were. The first few that Dean killed were supposed to have been sent off somewhere in California.
"The first killing that I remember being present at was on 6363 San Felipe. That boy was Ruben Haney. Dean and I were the only people involved in that one but Dean did the killing and I just was present when it happened.
"I also remember two boys who were killed at the Place One Apartments on Mangum. They were brothers and their father worked next door where they were building some more apartments. I was present when Dean killed them by strangling them but again I didn't participate. I believe that I was present when they were buried but I don't remember where they were buried. The youngest of these two boys is the youngest that was killed I think.
"A boy by the name of Glass was . . . killed at the Columbia address. I had taken him home one time but he wouldn't get out because he wanted to go back to Dean's. I took him back and Dean ended up killing him. Now that I think about it I'm not sure whether it was Glass that I took home or another boy, but I believe it was Glass.
"It was during the time that we were living on Columbia that Wayne Henley got involved. Wayne took part in getting the boys at first and then later he took an active part in the killings . . . Most of the killings that occurred after Wayne came into the picture involved all three of us.
"There was another boy killed at the Schuller house, actually they were two at this time. A boy named Billy Balsch and one named Johnny and I think that his last name was Malone. Wayne strangled Billy and he said "Hey Johnny' and when Johnny looked up Wayne shot him in the forehead with a .25 automatic. The bullet came out of his ear and he raised up and about three minutes later he said, "Wayne please don't'. Then Wayne strangled him, and Dean helped.
"Dean moved to the Frencesa Apartments on Wirt . . . At that time I was using Dean's car so I was in and out all of the time.
"After the Frencesa apartments Dean moved to Pasadena. I know of two that were killed there. One was from Baton Rouge and one was a small blond boy from South Houston. I saw the boy from South Houston for about 45 minutes. I took him a pizza and then I left and he wanted me to come back. I wasn't there when either of these boys were killed. I did come in just after Dean had killed the boy from Baton Rouge, that was on a different day from the blond boy.
"In all I guess there were between 25 and thirty boys killed and they were buried in three different places. I was present and helped bury many of them but not all of them. Most of them were buried at the boat stall. There were three or four buried at Sam Rayburn, I think, I am sure that there are two up there. On the first one at Sam Rayburn I helped bury them, and then the next one we took to Sam Rayburn when he got there Dean and Wayne found that the first one had come to the surface and either a foot or a ...