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ELMER WAYNE HENLEY v. STATE TEXAS (09/16/82)

September 16, 1982

ELMER WAYNE HENLEY, APPELLANT,
v.
STATE OF TEXAS, APPELLEE



COUNSEL

Duncan Nablett, Jr., Corpus Christi, Texas Will Gray, Simonton, Texas, for Appellant.

Larry P. Urquhart, John B. Holmes, Jr., Carol S. Vance, Houston, Texas, for Appellee.

Raul A. Gonzalez, Associate Justice.

Author: Gonzalez

RAUL A. GONZALEZ, Associate Justice

This is an appeal from a murder conviction by a jury where punishment was assessed at life imprisonment. At his request, appellant was tried simultaneously by the same jury on six murders that occurred in Harris County in 1972-1973. The indictments are based on the murders of six young men that had been procured by appellant for homosexual activities. This case was tried in Nueces County on a change of venue. This is a second trial of these cases. Convictions from the first trial in Bexar County were reversed on the basis that the trial court committed error in not allowing an evidentiary hearing on a change of venue motion. Henley v. State, 576 S.W.2d 66 (Tex.Crim.App. 1979).

The sufficiency of the evidence is not challenged. In eleven grounds of error, appellant alleges that the court committed error in denying appellant's challenge for cause of several jurors who allegedly could not consider the minimum punishment, had formed an opinion as to appellant's guilt which would affect their verdict, and who read newspaper accounts of the trial contrary to the court's instructions. Appellant also alleges error in the court failing to charge on waiver of counsel before the jury could consider the oral statements and the written confession. We affirm.

On August 8, 1973, about 8:15 a.m., appellant called the Pasadana Police Department and reported that he had shot a man. Shortly thereafter, the police arrived and found appellant and two companions sitting down on the sidewalk. Appellant told the officer that the man he had killed was inside the house. There was a pistol lying on the sidewalk near where appellant was seated. The officer placed appellant and his companions in the patrol car and placed the pistol in the truck. The officer went inside the house and found the body of Dean Corll. The officer went back to the patrol car and read the "Miranda" warnings to appellant. Appellant blurted out that he didn't care who knew it but he had to get if off his chest and that he knew where there might be some more bodies. Appellant was taken to the police station where he was again warned of his rights by a magistrate. Thereafter, appellant told a detective that he knew the location of some bodies near a warehouse or boat stall. Appellant mentioned the names of Cobble and Jones. The Houston Police Department was called about whether they had a missing persons record on these persons. They did. Appellant was then taken to the Houston Police Station where he was shown the pictures of Marty Jones and Charles Cobble and appellant verified that these were two people he was talking about. Appellant then led the detectives to the boat stall that had been leased by Dean Corll. From about 6:30 p.m. to 11:30 p.m., the officers dug up a total of eight bodies and discontinued their digging operations. During most of this time, appellant was with the officers.

At approximately 10:00 a.m., the next morning, (August 9th), a detective again warned appellant of his rights. This interrogation resulted in appellant giving a written confession, part of which reads at follows:

"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 xxx deal where I could make some money, and he took me to Dean Corll. 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 $200.00 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 find a 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 11th 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 him into going to Dean's Apt to smoke some marijuana, 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 set up where I would put the handcuffs on and then 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 which he couldn't (sic) 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 $200.00. Then a day or so later I found out ahat (sic) dean (sic) 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 8 or 10 other boys, I don't remember exactly how many. Dean would screw all of them and sometimes suck them and make them suck him. Then he would kill them. 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 wasn't with us on was the last ones at the house on Lamar Street in Pasadena. The ones that I can remember by name are: David Hildegeist who Dean told me that he had killed and buried in his boat stall a boy by the name of Malley Winkle, who David and Dean told they had killed and put in the boat stall Charles Cobble who I killed and we 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. Then Marty Jones, me and Dean choked him and buried him in the boat stall. We killed a boy by the name of Billy Lawrence, I dont (sic) remember how we killed him, but we buried him up at Dean's place on Sam Rayburn Lake. We killed him at the house on Lamar Street too. Dean told me about one named Rueben Haney that he killed and buried on the beach at High Island. I shot and killed Johnny Delone, and we buried him at High Island. Then me and Dean and David Brooks killed two brothers, I think we choked them, anyway, we buried Billy Balch at High Island, and Mike Balch at Rayburn. We choked Mark Scott and Frank Aguirre and buried them at High Island. 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. Dean told me that there was 24 in all, but I wasn't with him on all of them. I tried to tell me (sic) mother two or three times about this stuff and she just wouldn't believe me. I even wrote a confession one time and hid it, hoping that Dean would kill me because the thing was bothering me so bad. I gave the confession to my Mother and told her if I was gone for a certain length of time to turn it in. Me and David talked about killing Dean so that we could get away from this whole thing and several times, I have come within an inch of killing him but I just never got up enough nerve to do it until yesterday, because Dean had told me that his organization would get me if I ever did anything to him. This statement covers all that I can remember about all this killings and all that I know about where they are buried." (emphasis added).

Then appellant led the officers to Lake Sam Rayburn. Enroute, appellant told the officers how they hauled the bodies in a large wooden box in Dean Corll's van. This wooden box was found by the officers in a tool shed in the back of the house where Corll's body was found.

Appellant also told the officers that he shot Cobble in the head and choked Marty Jones but that he couldn't do it all by himself because it was not easy to choke anybody to death like they show on television because he said they just wouldn't die so that he had to call Dean Corll to help him. In route to Lake Sam Rayburn, the officers stopped in Lufkin and met some other law enforcement officers. Appellant led the officers to a spot in a heavily wooded area on a dirt road. After they had traveled some distance, appellant said "stop I think this is where Billy Lawrence is buried. I think I remember this. This is the big log to the side of the road." The officers got out and marked the spot. Appellant directed the officers to travel about half a mile down the road and he pointed out another gravesite. Appellant did not remember who was buried there.

Appellant related that Dean Corll had bought many sets of handcuffs at several pawn shops in Houston so that nobody would notice him buying an exceptionally large number of handcuffs in one place. He related also an incident with one of the victims, Frank Aguirre. Appellant said that he put the handcuffs on himself but had a key in his back pocket which he used to take the handcuffs off. Then appellant got Frank Aguirre to put them on to see if Aguirre could get them off. After Aguirre had the handcuffs on, appellant and Corll tied him to a board and had oral and anal sex with him before they killed him.

At approximately 10:30 that night, appellant was taken to the San Augustine jail. The next morning, appellant led the officers back to the same wooded area they had been the night before and led the officers to another gravesite. There were two bodies in this gravesite and appellant told the officers that he believed one of the bodies was that of Homer Garcia and he wasn't sure of the other victim's name. They left the area and appellant led the officers to an area on High Island near Winnie, Texas. Appellant told the officers that the bodies were scattered up and down the beach. A total of five bodies were found in this area. In High Island, appellant related to the officers several bizarre acts of torture that the victims were put through before they were killed.

Jury Selection

Appellant's first eight grounds of error relate to alleged harmful errors committed during selection of the jury. The record reflects that appellant used ten of his peremptory challenges on veniremen Juranek, La Fon, Maresh, Segura, Vaughn, Miles, Hodges, Alexander, Ullom, and Reyes, after his challenge for cause to each of these persons was overruled. The record shows that appellant requested a sufficient number of additional peremptory challenges to cover the ten jurors but was given only two. Therefore, if the trial court ruled incorrectly on more than two of these challenges, reversal will be required. The record also shows that appellant informed the trial court that because it granted an insufficient number of additional peremptory challenges, eight jurors were seated on the jury that were objectionable to him and that he would have excused by peremptory challenge. The adverse rulings of the trial court to appellant's challenges for cause have been correctly brought forward for review. See, Pierce v. State, 604 S.W.2d 185 (Tex.Crim.App. 1980).

In deciding the propriety of the court's ruling on challenges for cause during voir dire, we must take into consideration the totality of the juror's responses concerning the qualification in question.*fn1 This includes taking into consideration such factors as the nature of the question put to the juror*fn2, the juror's ability to comprehend the question and the juror's ability to express himself. We must also weigh vague or contradictory responses against those that are not,*fn3 keeping in mind, in close cases, that the trial judge has had the opportunity to observe the tone of voice and demeanor of the prospective juror in determining the precise meaning intended, while we only have the "cold record".*fn4

In his first ground of error, appellant argues that veniremen Juranek, La Fon, Maresh, and Segura should have been excluded on the grounds that none of them could consider the "minimum punishment of five years probation in a murder with malice ...


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