Branch v. Texas Appendix

    APPENDIX

B w p n m  (E xm xt of %  Htttttft
Teem, 1971 

N o. 69-5031

Elmer Branch, 

Texas

Petitioner,

ON WRIT OP CERTIORARI TO THE COURT OP 
CRIMINAL APPEALS OP TEXAS

PETITION FOR CERTIORARI PILED MARCH 10, 1970 
CERTIORARI GRANTED JUNE 28, 1971



(Enurt at %  Btntm
T e r m , 1971 

N o. 69-5031

E l m e r  B r a n c h ,
Petitioner,

T e x a s

ON WRIT OF CERTIORARI TO THE COURT OF 
CRIMINAL APPEALS OF TEXAS

I N D E X
Page

Record from the 46th Judicial District Court, Wilbarger 
County, Texas

Relevant docket entries _________________________________ 1
Indictment filed May 19, 1967 ________________________  2
Arraignment filed May 25, 1967 ______________________  3
State’s Notice of Intention to seek the death penalty filed 

May 25, 1967 _______________________________________  5
Charge of the Court filed July 26, 1967 _______________  6
Judgm ent_____________________________________________  11
Pauper’s Oath ________________________________________  13
Notice o f Appeal filed February 13, 1968 _____________  14
Jury’s Notes to the C ou rt___________________ _________  15
Court’s Replies to the Jury’s Notes ____________________  16



11 IN D E X
Page

Record from the 46th Judicial District Court, Wilbarger 
County, Texas— Continued

Statement of Facts (excerpts) __________________ 17
Testimony of Mrs. Grady Stowe 

— Direct ________________________________________  17
— cross _________________________________________  28

Testimony of Mr. Don Gary
— direct (in absence of Jury) _______ __________  29
— cross (in absence of Jury) __________________ 31

Testimony of Mr. Loran A. Smith 
— direct (in absence of Jury) ---------------------------  35
— cross _________________________________________  36

Testimony of Charles Inglish 
— direct (in absence of Jury) __________________ 37

Testimony of J. G. Hulsey
— direct (in absence of Jury) __________________ 38
— cross (in absence of Jury) _____________ _____  41
— redirect (in absence of Jury) -----------------------  43

Testimony of Mr. Loran A. Smith 
— redirect (in absence of Jury) ------------------------ 45
— recross (in absence of Jury) -------------------------  46

Testimony of Mr. G. R. Stowe 
— direct (in absence of Jury) __________________ 47

Testimony of Mr. Loran A. Smith 
— direct ________________________________________  48
— cross _________________________________________  53

Mr. J. G. Hulsey
— direct ________________________________________  54
— cross _________________________________________  60

Testimony of Mr. R. Y. Woodard 
— direct ________________________________________  66
— cross _________________________________________  70

Testimony of Mr. Leonard Woodard 
— direct ________________________________________  71
— cross _________________________________________  73

Testimony of Mr. Don Gary
— direct _____________________________________ —  74
•—cross _________________________________________  76
— redirect ______________________________________  77
—recross _______________________________________  78



INDEX iii

Page
Record from the 46th Judicial District Court, Wilbarger 

County, Texas— Continued
Statement of Facts (excerpts)— Continued

Testimony of Mr. Loran A. Smith 
— redirect ______________________________________  78
— recross _________________________________   79

Testimony of Mr. Edward Sneller
— direct ____________________________ ____________  80
— cross _________________________________________  84

Testimony of Mr. Ira B. Hensley 
— direct ________________________________ 1-----------  85
— cross ________________________________   90

Testimony of James W. Wooten 
— direct ________________________________________  91
— cross _________________________________________  94

Testimony of Mrs. Helen Smith 
— direct ________________________________________  96

Testimony of Mrs. May Anna Pratt 
— direct ________________________________________  98

Testimony of Mr. L. W. Wiley 
— direct _____________________________    99

Testimony of Mr. Loran A. Smith 
— redirect ______________________________________  103

Proceedings in the Court of Criminal Appeals of Texas------  131
Opinion, Woodley, J., December 10, 1969 --------------------------- 131
Certificate of Clerk, Court of Criminal Appeals ---------------—  135
Order granting motion for leave to proceed in forma pau­

peris and granting petition for writ of certiorari ---------- 136



1

Relevant Docket Entries

1. Date of offense— May 9, 1967.

2. Indictment filed— May 19, 1967.

3. Arraignment of Elmer Branch and appointment of 
counsel— May 25, 1967.

4. State’s Notice of Intention to Seek the Death Penalty 
filed— May 25, 1967.

5. Pretrial hearing held— July 21, 1967.

6. Jury selection and trial— July 24-26, 1967.

7. Motion for New Trial hearing— September 18, 1967.

8. Notice of Appeal to the Court of Criminal Appeals—  
February 13, 1968.

9. Mandate affirming conviction issued by the Clerk of 
Court of Criminal Appeals— December 29, 1968.



2

Indictment— Filed May 19, 1967

IN THE NAME AND BY THE AUTHORITY OF THE 
STATE OF TEXAS:

The Grand Jurors, duly selected, organized, sworn 
and impaneled as such for the County of Wilbarger, 
State of Texas, at the March, A.D. 1967, Term of the 
;46th District Court for said County, upon their oaths 
present in and to said Court that on or about the 9th 
-day of May, A.D. 1967, and before the presentment of 
this indictment, in the County and State aforesaid, El­
mer Branch did, then and there unlawfully in and upon 
Mrs. Grady Stowe, did make an assault; and did then 
and there, by force, threats and fraud, and without the 
consent of Mrs. Grady Stowe, ravish and have carnal 
knowledge of the said Mrs. Grady Stowe, against the 
peace and dignity of the State.

/sy  [Illegible]
Foreman of the Grand Jury



IN THE 46TH DISTRICT COURT OF 
WILBARGER COUNTY, TEXAS

3

No. 6608

[File Endorsement Omitted] 

The State of Texas

vs

Elmer Branch

Arraignment— Filed May 25, 1967

ON THIS, the 25 day of May, 1967, the Defendant 
being present in open court, and the District Attorney 
also being present, the Court proceeded to cause the 
Defendant to be arraigned in accordance with Art. 26.01, 
Code of Criminal Procedure, as follows:

1. The name of said defendant, as stated in the in­
dictment herein, was distinctly called, and the said de­
fendant answered in person that his name was Elmer 
Branch.

2. The Court informed the Defendant of his right to 
counsel before entering a plea to the indictment herein 
pending against said defendant, and thereupon, said 
defendant informed the Court that (a) * * * (b ) he 
was too poor to employ counsel, and requested that the 
Court appoint one or more practicing attorneys to de­
fend him, as provided in Art. 26.04, Code of Criminal 
Procedure. Whereupon, the Court required said Defend­
ant to file a Pauper’s Affidavit, as same is set forth 
below, and after hearing evidence relevant thereto, does 
hereby appoint Jim E. Souris, a practicing attorney of 
Wilbarger County, Texas, to represent said Defendant. 
The Court further finds that said attorney will expend
____  day(s) in representing said Defendant, and directs
the Clerk of this Court to pay said attorney the sum of 
$______ , for his services, as provided by law.



4

3. Thereafter, the indictment herein was read to the 
Defendant, and he was asked whether he was guilty or 
not, as therein charged, and after obtaining the advice 
of his attorney, his said plea of not guilty as charged 
in said indictment was entered of record upon the min­
utes of this court.

4. This arraignment did not take place until the ex­
piration of at least two entire days after the day on 
which a copy of the indictment was served on the De­
fendant, or if  this not be the case, then the right to 
such copy or to such delay was waived or the Defendant 
is on bail, as provided by Art. 26.03, Code of Criminal 
Procedure.

,/s/  Tom Davis
Judge Presiding

PAUPER’S AFFIDAVIT

I, Elmer Branch, Defendant in the above styled and 
numbered cause, hereby solemnly swear that I am wholly 
destitute; that I do not have funds or means of employ­
ing an attorney to represent me in this case.

,/s/  Elmer Branch 
Defendant

Before me, the undersigned authority, on this the 25th 
day of May, 1967, personally appeared Elmer Branch, 
who subscribed the foregoing instrument, and after hav­
ing been by me duly sworn, stated on his oath that the 
foregoing statements are true and correct.

,/s/ Thomas A. Neely 
Thomas A. Neely 
Notary Public in and for 

Wilbarger County, Texas



5

IN THE DISTRICT COURT 
OF WILBARGER COUNTY, TEXAS

March Term, 1967 

No. 6608

[File Endorsement Omitted]

The State of Texas

vs.

Elmer Branch

State’s Notice of Intention to Seek the Death 
Penalty— Filed May 25, 1967

To the Honorable Judge of Said Court:
Now comes Curtis Renfro, District Attorney of Wil­

barger County, Texas, and informs the Court that the 
State of Texas will ask for the death penalty against 
the Defendant in the above numbered and entitled cause, 
and enters this notice of record in open court, this the 
25th day of May, 1967.

/ s /  Curtis Renfro 
District Attorney 
46th Judicial District 
Wilbarger County, Texas

A true copy of this notice was delivered in person to 
the Defendant herein, and his attorney, J. G. Souris, of 
Vernon, Texas.



6

IN THE DISTRICT COURT 
OF WILBARGER COUNTY, TEXAS

No. 6608

[File Endorsement Omitted]

The State of Texas 
vs.

Elmer Branch

Charge of the Court— Filed July 26, 1967

GENTLEMEN OF THE JURY:
In this case, the defendant, Elmer Branch, is on trial, 

charged by bill of indictment with the offense of rape, 
alleged to have been committed in the County of Wil­
barger, State of Texas, on or about the 9th day of May, 
A. D. 1967.

To this charge the defendant has pleaded “ Not 
Guilty” .

1.

“ Rape”  is the carnal knowledge of a woman without 
her consent obtained by force.

2.

In this case the indictment charges rape by force and 
I charge you that “ force” , within the meaning of the 
Statute, is defined as follows:

“ To constitute rape by force the accused must have 
ravished the alleged injured female by having carnal 
knowledge of her without her consent and against her 
will by force and the force used must have been such as 
might reasonably be supposed sufficient to overcome all 
resistance within her power, taking into consideration 
the relative strength of the parties and other circum­
stances of the case and penetration of the sexual organs



7

of the female, alleged to have been ravished, by the male 
organs of the accused must be proved by the State be­
yond a reasonable doubt.”

3.
The penalty prescribed by the statute of the State of 

Texas for the offense of rape is death, or confinement in 
the penitentiary for life or for any term of years not 
less than five.

4.
Therefore, you are instructed that if you should be­

lieve from the evidence in this case, beyond a reasonable 
doubt, that the defendant, Elmer Branch, did, as charged 
in the indictment, on or about the 9th day of May, 1967, 
in the County of Wilbarger and State of Texas, then 
and there by force violently ravish and have carnal 
knowledge of Mrs. Grady Stowe, a woman, without her 
consent and against her will, you will find the defendant 
guilty of rape and assess his punishment at death, or 
confinement in the penitentiary for life, or for any term 
of years you see proper, not less than five. If you do 
not so believe, or if you have a reasonable doubt thereof, 
you will acquit the defendant.

5.
In a criminal case the law permits the defendant to 

testify in his own behalf; but the same law provides 
that his failure to testify shall not be considered as a 
circumstance against him. You will, therefore, not con­
sider the failure of the defendant to testify as a circum­
stance against him; and you will not in your delibera­
tion of your verdict consider or allude to, comment on, 
or in any manner refer to the fact that the defendant 
has not testified.

6.
In this case the issue has been raised as to whether 

there was a legal arrest of the Defendant. In the event 
the arrest was not legal, the evidence relating to the 
shoes taken from the Defendant and the comparison of



8

the shoes and foot prints at or about the scene of the 
crime is not admissible. I instruct you that the only 
circumstances under which one may lawfully be arrested 
without warrant is where a peace officer is informed by 
a credible person that a felony offender is about to escape 
and there is no time to secure a warrant.

In the event that you find the arrest was illegal, or if 
you have a reasonable doubt that the arrest was legal, 
you are instructed not to consider for any purpose any 
testimony relating to the shoes of the Defendant and 
comparison of the same to the foot prints at or about 
the scene of the crime.

7.

You are charged that it is only from the witness stand 
that the jury is permitted to receive evidence regarding 
the case, and no juror is permitted to communicate to 
any other juror anything he may have heard regarding 
the case or any witness from any other source than the 
witness stand.

8.
In deliberating on the case you are not to refer to or 

discuss any matter or issue not in evidence before you, 
neither shall you separate from each other, nor talk with 
anyone not of your jury.

9.

You are further instructed as a part of the law in 
this case that the indictment against the defendant is 
not evidence in the case, and that the true and sole use 
of the indictment is to charge the offense, and to inform 
the defendant of the offense alleged against him. The 
reading of the indictment to the jury by the State can­
not be considered as a fact or circumstance against the 
defendant in your deliberations.

10.
In all criminal cases the burden of proof is on the 

State. The defendant is presumed to be innocent until



9

the guilt of the defendant is established by legal evi­
dence, beyond a reasonable doubt; and in case you have 
a reasonable doubt as to the defendant’s guilt, you shall 
acquit him and say by your verdict “ Not Guilty” .

11.
You are the exclusive judges of the facts proved, of 

the credibility of the witnesses and of the weight to be 
given to the testimony, but you are bound to receive the 
law from the Court, which is herein given you, and be 
governed thereby.

12.

If you find the defendant “ Not Guilty” , simply say 
so. If you find the defendant “ Guilty” , so state and 
affix the proper penalty therefor as set forth in this 
charge and for which an appropriate form is attached.

When you have concluded your deliberation and 
reached a unanimous agreement as to your verdict, your 
Foreman will certify to your verdict by use of the ap­
propriate form hereto attached. Whereupon, you will 
advise the officer in charge at the door of the jury room 
that you have reached a verdict, and you will return 
in to Court with the same in due time.

/&/ Tom Davis
Judge, 46th Judicial Dis­

trict Court, Wilbarger 
County, Texas



10

FORMS FOR VERDICT

We, the jury, find the defendant “ Not Guilty” .

Foreman

We, the jury, find the defendant guilty as charged 
in the indictment, and assess his punishment at confine­
ment in the state penitentiary for life.

Foreman

We, the jury, find the defendant guilty as charged
in the indictment, and assess his punishment a t _______
years confinement in the state penitentiary.

Foreman

We, the jury, find the defendant guilty as charged in 
the indictment and assess his punishment at death.

/ s /  Jimmy Koontz 
Foreman



11

IN THE 46TH DISTRICT COURT 
OF WILBARGER COUNTY, TEXAS 

AT VERNON, TEXAS

No. 6608

[File Endorsement Omitted] 

The State of Texas

vs.

Elmer Branch 

Judgment— July 26, 1967
The 26th day of July, A.D. 1967, came on for considera­
tion the foregoing Cause, wherein Elmer Branch, De­
fendant herein, stands charged by indictment, for the 
offense of rape as more fully set out in said instrument. 
The State of Texas appeared by its District, attorney, 
The Defendant appeared in person and was also prop­
erly represented, and appeared by counsel herein, both 
prior to, and during the trial hereof, as prescribed by 
law.
That after the presentation of preliminary pleas, mo­
tions, and discussions, offered and considered herein, an­
nouncements of ready were properly made and entered 
for both parties. Whereupon, the Court then continued 
with the hearing and trial of this Case.
From the jury panel of good and lawful jurors, a jury, 
to-wit: Jimmy Koontz and eleven others, was duly se­
lected, impaneled and sworn, to constitute the jury in 
the trial of said Defendant, as directed by law. The 
attorney representing the State then, in open Court, read 
the foregoing instrument, wherein said Defendant was 
charged with said offense. The Court, in due time and 
order, requested the Defendant to announce whether or 
not said Defendant elected to plead guilty, or not guilty, 
to the accusations contained in said instrument. In an­
swer to said request, said Defendant duly made and 
entered, in open Court, a plea of not guilty.



12

The attorney, representing the State, then introduced 
evidence, considered necessary to the prosecution. The 
Defendant was also afforded ample oportunity to submit 
admissible evidence calculated to support Defendant’s 
said plea of not guilty and defense herein. Both the 
State and defense then rested, and announced they had 
no additional evidence to offer.
Thereafter, the Court presented its proper charge to the 
jury, as directed by law. Whereupon, the Case was duly 
discussed and issues therein argued by both the State 
and defense. Under the instructions of the Court, the 
jury retired, in charge of a proper officer for delibera­
tion; and afterward returned into open Court with its 
verdict. The said attorney representing the State was 
duly present. The Defendant appeared (1) in person 
and by Attorney. The jury then, in due time and form 
of law, presented said verdict to the Court, and an­
nounced the same to be its decision and finding. Said 
verdict, as found and determined by the jury, was prop­
erly received, and read in open Court; and was as fol­
lows, to-wit:

“ We, the jury, find the defendant guilty as 
charged in the indictment and assess his punish­
ment at death.

Jimmy Koontz 
Foreman”

IT IS, THEREFORE, ORDERED, ADJUDGED AND 
DECREED, by the Court that Elmer Branch, Defendant 
herein, is guilty of the foregoing offense as charged in 
said instrument; and punishment to be imposed there­
for, as found and determined during the trial hereof, is 
hereby assessed against said Defendant, as follows:

That he be punished by death.
It is further ORDERED AND DECREED, by the 
Court that the State of Texas have and recover Judg­
ment against said Defendant, for said penalty and pun­
ishment, and for such Court costs, if  any, that may be 
taxed herein; and that all writs, process and remedies,



13

prescribed by law, and necessary for the enforcement of 
this Judgment, may issue, as directed by law.

/ s /  Tom Davis
Judge of the 46th Judicial 

District Court of Wilbar­
ger County, Texas

IN THE DISTRICT COURT 
OF WILBARGER COUNTY, TEXAS

No. 6608

[File Endorsement Omitted]

The State of Texas

vs.

Elmer Branch

Pauper’s Oath— Filed August 4, 1967
BEFORE ME, the undersigned authority, on this date 
personally appeared Elmer Branch, Defendant in the 
above entitled and numbered cause in the District Court 
of Walbarger County, Texas, who, being by me first duly 
sworn, on his oath says, that a regular term of Court, 
to wit, on the 26th day of July, 1967, judgment was 
rendered against him, from which judgment he, the said 
Elmer Branch, desires to prosecute an appeal to the 
Court of Criminal Appeals, for the State of Texas, and 
that he is unable to pay the costs of appeal, or any part 
thereof, or to give security therefor.

,/s/ Elmer Branch 
Elmer Branch

Subscribed and Sworn before me this 4th day of Au­
gust, 1967.

/ s /  Jerry Barton
Notary Public in and for 

Wilbarger County, Texas



14

IN THE DISTRICT COURT 
OF WILBARGER COUNTY, TEXAS

No. 6608

[File Endorsement Omitted]

The State op Texas 
vs.

Elmer Branch

Notice of Appeal— Filed February 13, 1968

On this the 13th day of February, 1968, COMES NOW 
Elmer Branch, Defendant in the above entitled and num­
bered cause, and after the Court has entered judgment 
herein, overruled Defendant’s Motion for New Trial, and 
Motion in Arrest of Judgment, gives notice of appeal 
from the conviction herein to the Court of Criminal 
Appeals of Texas.

/ s /  J. G. Souris
Attorney for Defendant 
J. G. Souris 
Attorney-at-law 
405 Herring Bldg.
Vernon, Texas 76384



15

10:55

1:30

3:20

All pictures and exhibits that was introduced 
in the case.

/ s /  Jimmy Koontz

If the sentence is life, what is the minimum 
years before he is qualified for parrall.

,/s/ Jimmy Koontz

Is there any verdict that we could give where 
there would be no parrall offered.

,/s/ Jimmy Koontz

Would you re-type paragraph # V  where we 
could read it.

,/s/ Jimmy Koontz



16

Pursuant to your last two questions sent to the Court, 
you are instructed that the only answer this Court can 
give you is: You are not to consider or discuss among 
yourselves how long the accused will be required to serve 
the sentence, if any, you desire to impose. Such matters 
come within the exclusive jurisdiction of the Board of 
Pardons and Paroles and the Governor, and are no con­
cern of yours.

/ s /  Tom Davis
Judge Presiding

I hand you herewith all pictures and exhibits intro­
duced into evidence as per your request. I instruct you 
not to remove the pictures from their mountings.

/ s /  Tom Davis
Judge Presiding

Gentlemen of the Jury:
I am sorry. I can not comply with your last request.

/s /  Tom Davis
Judge Presiding

Gentlemen of the Jury:
I can not furnish you a Bible, nor are you permitted 

to use one in your deliberation.

/s,/ Tom Davis
Judge Presiding



17

Statement of Facts 

DISTRICT COURT 

No. 6608

The State of Texas 
vs.

Elmer Branch

TRANSCRIPT OF EVIDENCE 
FROM THE 46TH DISTRICT COURT OF 

WILBARGER COUNTY, AT VERNON, TEXAS
HON. TOM DAVIS, JUDGE PRESIDING 

[fol. 390]

MR. GRADY STOWE, after having been first duly 
sworn, testified as follows, to-wit:

DIRECT EXAMINATION 

BY MR. RENFRO:
Q Mrs. Stowe, your name is Mrs. Grady Stowe?
A Yes.
MR. SOURIS: Your Honor, I would like to ask if

she does not have another name.
THE COURT: I beg your pardon?
MR. SOURIS: I would like to inquire if she doesn’t

go by another name besides Mrs. Grady Stowe.
WITNESS: Well, my given name is Euralissa.
Q (By Mr. Renfro) Mrs. Stowe, please talk toward 

the jurors, and talk loud enough that this last gentleman 
over here can hear your testimony. It’s very important 
that they hear every word you say.

Mrs. Stowe, where do you live?
[fol. 391] A I live twelve miles north of Vernon.

Q That is on the east side of the highway, or the 
other side, other side of Northside?



18

A Yes.
Q Mrs. Stowe, is your husband deceased?
A Yes, he passed away last October, 1966.
Q 1966?
A October 8.
Q Since that time you have been living out there by 

yourself?
A Yes,
Q Mrs. Stowe, on or about the 9th day of May, 1967, 

did or not someone enter your house?
A Yes.
Q Were you or not assaulted?
A Yes, I was assaulted.
Q Approximately what time of the night was that?
A Well, it must have been a little before 2:00 o’clock.
Q Mrs. Stowe, is the person who made that assault 

upon you in this courtroom?
A That is his right there (indicating Defendant).
Q Sitting behind Mr. Souris here?
A That colored man.
Q Are you positive of that?

[fol. 392] A Yes, I am positive.
Q Now, Mrs. Stowe, will you start out from the be­

ginning, from the time that you discovered the Defend­
ant in your presence? Will you describe to the jury what 
all happened in your own words?

A Yes.
Q Please do so.
A Well, I wear a hearing aid, and when I take it 

off, I can’t hear any noise much, and so I was asleep, in 
bed asleep, and I was lying on my left side, and the first 
thing I knew the cover was being jerked off of me. Well, 
my son has a key to my house, and I never thought about 
him being an intruder. I thought perhaps it was my little 
grand daughter; they had come in to wake me up or 
something, and so I turned over and I said, “ What is it? 
What has happened?” and I threw my arms up like this, 
and I said “ What do you want?” and this colored man 
grabbed my arm in a steel grasp, just grabbed them, and 
said, “ I’ll show you what I want.”  And so I thought 
‘oh, my God, a colored man’, and I began to struggle and



19

struggle and try to get loose, and I couldn’t break his 
grasp on my arms at all. It was just like a steel grasp 
on my arm, just holding me, and I struggled and strug- 
[fol. 393] gled, and I was lying, to start with, I was lying 
with my head to the west and my feet to the east, and 
finally he got me across the bed and I scooted and scooted 
back away from him and hollered and tried to scream 
and hollored and hollered, and my bed was out just 
about that far from the wall, and he slid me back. 
He kept sliding me back until he got my head hanging 
off the bed, butting it back against the wall, and then 
when he got me back in the corner, pinned in a corner 
like that, he was hurting me so, pushing my head against 
the wall, and he folded my arm over like this, and then 
he put his right arm— he held this arm, and put his right 
arm right across my throat like that and my head was 
already hanging off the bed, and pressed down on it just 
as hard, and every time I hollered he pressed that much 
harder and told me to shut up, he wasn’t going to have 
any of that, and I kept trying to holler and he would just 
press harder every time and harder, and he held me with 
this one over here this way, and this one over here with 
his right arm, you see, right against my throat and I was 
hanging off the bed, you know, and it hurt right here, 
and he taken his left hand and stripped off my bottom 
[fol. 394] part of my pajamas, and I was kicking and try­
ing to keep my legs crossed and he kept on scratching and 
clawing until he got my legs apart, and then he assaulted, 
and I couldn’t get away from him. There wasn’t any­
thing I could do. He just was so strong. I have never 
seen a man with that kind of power in his hands, and 
then he told me— He got up after the act was over. He 
got up and just stood there beside the bed and told me to 
get up, and I got up and sat on the side of the bed, and 
he said, “ How much money you got?” And I said— I was 
crying and screaming and taking on, and I said, “ I don’t 
have any money,” and I said, “ I don’t keep any change 
out here at this time of year.” I said, “ I give checks for 
everything,” and he said, “ Well, give me what you got,” 
and I said, “ Well, you will have to move.”  He was stand­
ing right over me. He said, “Where is it?” I said, “ It’s 
in my purse,”  so he moved back just a little, and I said,



20

“ I will get it for you. You can have it, if  you will just go 
and leave me alone,”  and I went in and turned around 
and reached in the closet and got my purse and took out 
this coin purse. I have got the coin purse with me that I 
>[fol. 395] had. I took it out, and he held out his hand. 
You see, there was a light in the bathroom, right next to 
my room and that shone right down the hall, and I could 
see him. In semi-darkness all the time I could see him, 
and there was a light in the back bedroom too. I always 
have left one burning every since my husband passed 
away, and I could see his hand out there, and I just 
turned it up and poured it in his hand, and I said “ That’s 
all I have got.” I said, “ I’ll give you a check, if you will 
just go on and leave me alone. I will give you a check.” 
He said, “ No, I won’t take a check. No, no checks,” just 
like that. I said, “ I will give you any amount of money, 
put it in an envelope and drop it anywhere you say to­
morrow, if you will just go on and leave me alone,”  and 
he said, “ No. No, that won’t do.”  Then he just backed 
up and stood over there, pushed me back and stood 
against my dresser, which is lined up like that is there, 
folded his arms, and I started to get up and he pushed 
me back again, a time or two, and I was crying and tak­
ing on, and he told me— he was mumbling. I said, “What 
did you say.” He said, “ I am going to keep you here until 
[fol. 396] 12:00 o’clock tomorrow, and we are going to 
do this every hour— ” He said a nasty word. I am not 
going to say it, but he said, “ I am going to use you every 
hour on the hour until 12:00 o’clock tomorrow.”  And I 
told him, “ You won’t either.”  I said, “ My son is going 
to come down here in the morning. He always comes and 
checks on me every morning, and I am going to have a 
hired hand at 7 :00 o’clock to go to work.”  So he just kept 
shoving be back, mumbling and talking, and I couldn’t 
understand him because I didn’t have on my hearing aid, 
and I begin to pray. I said, “ Oh, God. Oh, God. Please 
be merciful. Please be merciful.”  Just like that, and I 
was crying and I didn’t know what to do but pray. I 
knew he was so strong I couldn’t do nothing, so after I 
prayed a little bit, why, he bellowed at me “ Shut that up. 
Shut that up. We don’t need him.”  Just like that, so I



21

shut up, but I kept on praying in my mind. I prayed in 
my mind all through it. And finally I began to plead and 
beg him to let me get my hearing aid on. He kept talk­
ing and I couldn’t understand anything he said, and I 
said, “ Please let me get my hearing aid. I wear a hearing 
aid on my glasses. I can’t hear a word you are saying,” 
[fol. 397] just like that, and I prayed and prayed, and I 
begged and begged “ Please let me get my hearing aid,” 
and finally he said, “Where is it?”  And I said, “ It’s right 
on the dresser behind where you are standing.” He said, 
“ Well, get it then.”  Just like that. Well, I got up and got 
my hearing aid and put it on, and then I sat down in a 
chair that was ever there about three feet, three or four 
feet from the bed, and I said, “ Why? Why did you come 
out here and molest a woman my age? I am sixty-five 
years old, when there are plenty of nice pretty girls in 
town?”  I said, “ Why did you come out here and do a 
thing like this to me?”  and he said, “ I wanted to see how 
you felt about colored people.”  And that is the only ex­
cuse he ever gave me for doing that, and I told him, I 
said, “ Well, if  we hadn’t felt all right about colored peo­
ple, we wouldn’t have used them on the farm for forty- 
five years.”  My husband always brought colored people 
out there and gave them the work, because he always 
said they needed the work. We always worked colored 
people, and I had worked a lot of colored kids in my can­
taloupes and my produce and things like that, and I never 
[fol. 398] did have any trouble with any of them. I gave 
kids, colored kids work that would never get to work any­
where else. I tried to help them out as much as I could, 
and in picking my cantaloupes and things like that, you 
know. Of course, it wmuld just be a little while in the 
morning, but it helped them.

So we talked there for a while, and I told him, I said, 
“ I have got a colored man that I have had for thirty 
years. He has worked for us ever since 1936, and he has 
been respectable, nice, long and true to us,”  and I said, 
“ My husband used him all these years, and he come to me 
after my husband died and said, ‘I can’t get a job any­
where else. Are you going to let me work for you?’ He 
said, ‘At my age— I am sixty-three years old— I can’t get



22

a job anywhere else. Would you let me continue working 
for you?’ He said, ‘I know all about the farm, and I can 
carry it on just like Mr. Grady had me carry it on,’ and 
I said, ‘Yeah, you can go ahead and work for me.’ ”  So 
I was telling him all this. I said “ I loaned him money 
all this winter. He has got a big bunch of children and 
I loaned him money when he couldn’t work, so he could 
go ahead and support his family, and even last Sunday 
[fol. 399] morning he came by the house and wanted to 
borrow ten dollars because he was sick. He said he had 
to go to the doctor at Chillicothe, and I loaned him the 
ten dollars to go to the doctor at Chillicothe, and then by 
Tuesday he was able to come back to work.”  So I was 
telling this boy all this, you know, about hew we had 
worked these colored people and how we had been good to 
them all these years, and I couldn’t understand why he 
would come out there and molest me.

Well, I was coughing and crying, and telling him all 
this, and I begged him to let me go to the bathroom, and 
finally— He kept me hostage, I would say, thirty to forty- 
five minutes, and I was coughing and choking. He had 
hurt my throat and I was hurting all over really. My 
throat was hurting and I couldn’t hardly get my breath, 
and I asked him to let me go to the bathroom. I told him 
I needed a drink of water. And so he finally said, “ Well, 
I will let you go to the bathroom if you won’t go any­
where else,” but he was standing in the door facing to 
see that I didn’t go any where else, and of course the 
bathroom was lit up, and the hall light was shining down 
the—  The bathroom light was shining down the hall, and 
[fol. 400] so I went to the bathroom and got me a drink, 
and I was barefooted, of course, and didn’t have on the 
bottom of my pajamas. I had tried to put them on, but 
he had jerked them away from me and wouldn’t let me 
put them on, and so when I came out the bathroom door, 
I just stepped back, oh, about as far as from here to 
there, and switched on the hall light. I switched on the 
hall light, and he yelled at me, “ Cut that light off.”  And 
when I didn’t shut it off—  I just stood there a second, 
because I was going to try to make it to the backdoor and 
get out the backdoor. When I didn’t shut the hall light



23

off, he just come stridling down and got me by the shoul­
ders and he shook me, and said, “ You shouldn’t have done 
that.”  It scared me, of course, again, and I said, “ Oh 
please, please don’t hurt me any more,” just like that. 
I looked right straight up in his face and begged him not 
to hurt me any more. I said, “ Well, I’ll shut the light 
off.” And I did. I reached to shut it off. So he throwed 
me around and shoved me down the hall, shoved me on 
clear on back and made me sit on the bed again, and I 
was still crying and taking on, and'—well, I didn’t know 
what was going to happen to me, and finally he stood 
[fol. 401] around, you know, and I knew not to pray out 
loud, but I was praying in the back of my mind all the 
time, and I asked him during the conversation if he had 
ever worked for me, and he said no, he hadn’t ever work­
ed for me, but he had seen me in ’64, and I asked him 
how he knew I was out there by myself, that I lived by 
myself, and he said he had information, like that, and 
finally he decided to go'. I was begging him all the time, 
“ Please go on and leave me alone. Please don’t hurt me 
any more.” Just begging and begging and begging and 
pleading with him to go on and leave me alone, not hurt 
me any more. Finally, he decided to go. He pitched me 
my pajamas, and he told me to put them on. Before that, 
though, he. mentioned he was going out and talk with 
some man in the car, but then he decided to leave. He 
pitched me my pajamas and told me to put them on and 
get in bed and cover up and not to move until I heard his 
car start. I still had my glasses and my hearing aid on, 
you see, and I told him, “ Go on and I will,”  and I did. 
I put them on and got in bed and covered up, and he 
walked to the telephone and he jerked the receiver off, 
jerked the wire off the receiver, and laid the receiver 
[fol. 402] back on the telephone, and then he turned 
around to me and he said, “ Now, I will be back, and if 
you tell this, I will kill you the next time I come back.” 
That is what he said. And I said, “Well, go on and leave 
me alone. Please go on and leave me alone. Go out the 
front door.”  So he went up and unlocked the front door 
and went out, and when I heard the screen hit the front 
door, I jumped up out of bed and run to the back door



24

and unlocked it and let the screen to real easy, because 
I was afraid he would hear it, and I run, just as hard as 
I could run. I run straight east, around the car shed and 
down through the alfalfa patch, the grass burs sticking 
my feet and everything else, but I run through them, and 
I run down to my son’s house, which is about, oh, I would 
say two blocks from my house, a block and a half, I don’t 
know, about a block and a half or two blocks. I run on 
down there and beat on his back bedroom window crying 
and screaming and told him what happened, and of course 
he was out in just a minute, and I told him what happen­
ed, and he went right in and called the police, and I was 
so shook up I just went and fell on the bed.
[fol. 403] Q Mrs. Stowe, while you were looking at him 
in the hall and he was standing over you there in the 
bedroom, did you have an occasion or chance to see how 
he was dressed?

A  I seen how he was dressed in my bedroom.
Q Well, can you tell this jury how?
A He had on tennis shoes and dark trousers, and I 

thought it was a grey shirt until I saw him in the hall, 
and I saw it was kind of a greenish, kind of a greyish- 
green T-shirt.

Q Those tennis shoes, what color were the tennis 
shoes?

A White.
Q They were white tennis shoes?
A They were white tennis shoes.
Q Dark colored trousers?
A Dark colored trousers, and kind of a greyish-green 

shirt, T-shirt, but I thought it was grey in there in the 
bedroom, but when I seen him in the light, out in the 
hall light, I could see that it had more green in it.

Q Did you tell your son—  That is G.W., isn’t it?
A Yeah.
Q Did you tell him how he was dressed?
A Yes, I described him just exactly how he was dress- 

[fol. 404] ed, and I told him, I said, “ He has got a pointed 
chin and a high cheekbone,” and I said, “ He is some taller 
than me, because I kind of looked up under his face.”



25

Q Now, Mrs. Stowe, you said a while ago that he 
said a word that you couldn’t repeat. When he said he 
was going to do this every hour. Was that distinct?

MR. SOURIS: Your Honor, I object to that.
THE COURT: Just withhold your answer, please,

ma’am, and go ahead and ask the question, and I will 
rule on it.

Q You said that the word he said was too vulgar to 
tell the jury?

A It is.
Q I will ask you whether or not the word he express­

ed to you was commonly used to denote—
A Sexual intercourse.
MR. SOURIS: No objection.
Q Is that what the word used meant?

[fol. 405] A  That is the word he said.
Q And you did tell this jury he did complete the act 

of intercourse?
A Yes, he did.
Q With you on that first occasion when he had you 

across the bed?
A Yes, he did. I couldn’t get away from him. I was 

pinned back in the corner.
Q Were you present in your son’s house when he 

called the police department?
A Yes.
Q Did you hear the description he gave the police de­

partment?
A Yes, I could hear it.
Q And you heard him call the Sheriff, Lor an Smith?
A It was the same thing I told him.
Q Mrs. Stowe, do you know how he made his entry 

to your house?
A Yes, through my kitchen window. Came out in the 

paper my bathroom window, but it wasn’t. It was the 
kitchen window. That is the dark side of the house. You 
see, I have those big lights on the south side. I have a 
light now on that side, but at that time that was the dark 
side of the house, and every other window in the house 
[fol. 406] was latched, locked and that window, for some 
reason, some painter had taken the back catch off of that



26

kitchen window, and the window wasn’t locked, but the 
screen was latched and the window was down. He just 
taken ahold of it with his bare hands, I guess, and the 
screen was just broke into, you know, where it’s joined 
on the side. It was just broke there. He just taken hold 
of it and jerked it, because we didn’t find any tools or 
anything around there he had used, and there was an old 
car wheel that we had had there for fifteen years, you 
see, that is the kitchen sink there, and the drain is there 
and the faucet is there on that side of the house, and we 
used to put sacks in half a bushel baskets, you know, and 
put it up over the drain, the faucet to keep it from freez­
ing up in the winter time, and this car wheel, my hus­
band had taken that around there fifteen years ago and 
put it up against that basket to keep the water from freez­
ing up, and so he had stood up on that car wheel and 
crawled in the kitchen window, because, you know, kitchen 
windows are up high.

Q Now, Mrs. Stowe, the Defendant here had worked, 
had he not, for your husband in prior years?
[fol. 407] A Yes. I found some checks. I went through 
all my checks. It must have been some colored kid that 
worked for me that had a grudge against me is all I 
could think, and I found—  But he never worked for me. 
I found four checks here. Three cotton picking checks in 
December, and they were given 28th, 29th, 30th.

Q What year?
A Sixty-one.
Q Sixty-one.
A And on August 7th, ’61, he was given a $4.10 

check, and I asked this colored man that worked for me 
if he was out there that summer. He said, “Yes, he 
helped me with some hay one day, about half a day, in 
the barn;” that he brought him out and he helped him 
put some hay in the barn. That was in August. These 
are all signed by my husband, but I was keeping books in 
the field in ’61 for my husband, and I wrote—  This is 
my writing here, the check is, but my husband’s signa­
ture on it, because I always helped him settle up with 
the cotton pickers, you know.



27

Q Did you see the person to whom the checks were 
delivered?

A What?
[fol. 408] Q Did you see the person to whom those 
checks were delivered, or did your husband deliver the 
checks?

A  These were in my husband’s checks.
Q I see.
A I went back through all my checks that I had 

given for any labor that I had ever had anybody to do for 
me, clear back through ’60, and I never did find a check 
that I had given, but he did work for my husband. I 
guess he was out of school. He was just about fourteen 
then, if he is twenty now. I guess he was out of school 
and worked the 28th, 29th and 30th picking cotton, pull­
ing cotton, because he got all these checks pulling cotton. 
Do you want to see them?

Q No thank you.
Mrs. Stowe, did you or not use all resistance in your 

power to resist him when he made his attack upon you?
A Did I do what?
Q Did you use all the power and resistance that you 

could with your body to keep him from making his at­
tack upon you?

A I didn’t understand you.
Q I said, did you use all the resistance that you 

could—
[fol. 409] A Yes.

Q — at the time that he made his attack?
A Yes, I tried to fight him. I tried to get away from 

him, but he is as strong as an ox. I couldn’t even break 
his grasp on me.

MR. RENFRO: Pass the witness.
THE COURT: Let’s take about a five minute recess 

at this time.
Gentlemen of the Jury, if  you will, retire to the jury 

room.
(At this time a recess was taken.)
(After recess.)



28

Q (By Mr. Renfro) Mrs. Stowe, I must ask you two 
more questions, and they are very necessary. Did this 
attack happen in Wilbarger County, Texas?

A Happen where?
Q In Wilbarger County, Texas?
A  Yes. Twelve miles north of Vernon.
Q Now, one more question, Mrs. Stowe. Did the De­

fendant put his private parts in your private parts?
[fol. 410] A  He certainly did.

MR. RENFRO: That is all.

CROSS EXAMINATION

BY MR. SOURIS:
Q Euralissa Stowe, is that correct?
A Yes.
Q You have testified under oath, is that correct?
A Yes.
Q You do not wish to change or withdraw anything 

that you have testified to?
A  I do not.
Q Thank you, Mrs. Stowe.
MR. SOURIS: That is all.

(Counsel approached the bench.)
THE COURT: Gentlemen of the Jury, at this time

there are questions of law which have to be gone into out 
of your presence. I think we will take our mid-morning 
[fol. 411] recess at this time. I am going to allow you 
fifteen minutes. Please do not come into the courtroom. 
If you desire to go across the street and get a cup of 
coffee, that is perfectly all right, but please bear in mind 
the Court’s instructions not to discuss this case among 
yourselves, nor with anyone else, nor are you to permit 
anyone to discuss it with you. If you want to go get 
coffee, as I say, it’s all right to leave, but please go 
promptly from the jury room to wherever you are going 
to coffee, and then report back directly to the jury room 
when you come back.

(Reporter’s note: The following proceedings were 
had outside the presence of the jury.)



29

MR. DON GARY, after having been first duly sworn, 
testified as follows, to-wit:

DIRECT EXAMINATION 

BY MR. RENFRO:
Q Mr. Gary, on the morning of May 9, 1967, did you 

[fol. 412] receive instructions to apprehend anyone com­
ing from the north, a colored man coming from the north 
in a car?

A I did.
Q Who, if  anyone, was with you?
A  Jimmy Mitchell.
Q What car number were you in? Do you remember?
A I don’t remember. I believe it was Car 6. I 

wouldn’t say for sure.
Q Did you and Mr. Mitchell then proceed down North 

Main Street?
A Yes.
Q Tell just where you went and what happened.
A  Well, we went down Main and the expressway, and 

we stopped one car or attempted to stop it and found out 
just before we stopped it it was a white man, so we 
turned around and went back across the expressway, and 
just as we pulled up to the stop sign on the west side, 
well, there was a car that approached from the north, 
and he hesitated just right there at the driveway and 
we started backing up there, and he turned into the 
service station. So we pulled in behind him, and by the 
time we got in there, he had ordered some gas.
[fol. 413] Q Was that this Defendant here?

A Yes, sir.
Q State whether or not what condition his clothes, his 

trousers—
MR. SOURIS: Now, Your Honor, the condition of

his clothes doesn’t have anything to do with it.
THE COURT: I think he can state what he observed,

Counsel.
MR. RENFRO: It has a whole lot to do with it.



30

THE COURT: Now, let’s don’t have any side bar re­
marks here. State your objections, Counsel, if  you have 
them. I am not going to have any argument between 
counsel.

All right. Go ahead with your examination.
Q (By Mr. Renfro) State whether or not the Defend­

ant’s pants were unzipped at the time you got him out 
of the car.

MR. SOURIS: Your Honor, he is leading the witness,
[fol. 414] THE COURT: That is a leading question.
Of course, we are out of the presence of the jury.

MR. SOURIS: Your Honor, he is trying to lead the
witness to tell him what to testify.

THE COURT: He can tell what he saw.
Q (By Mr. Renfro) Just tell what you saw, Mr. 

Gary.
A Well, he stopped there at the pump and bought 

some gas, and I walked over to the car and told him 
that the county deputies wanted to talk to him, have him 
wait just a minute, and when he got out of the car, his 
britches were unzipped, and he paid for the gas and he 
pulled on over there by the tin shop there, headed into 
it and stopped, got out of the car and waited.

Q What kind of shoes, if any, did he have on?
A He had on white tennis shoes.
Q White tennis shoes. Approximately how long did 

you stay there before anything else happened?
A Not over five minutes, I don’t believe.
Q Did someone else come up, some other officers?
A County deputies.

[fol. 415] Q Who were they?
A  Hulsey and Woodard.
Q At that time did they or not take the Defendant 

into custody?
A That is right.
Q And where did they go from there?
A Went out north.
Q They started back north?
A North Main Street.
Q Did you have any further communication with the 

county officers in the next few minutes?



31

A Yes.
Q What was that?
A They were calling for help out by Val Blakes.
Q Did you and Mitchell go to their assistance?
MR. SOURIS: He is leading the witness, Your Honor.
THE COURT: I don’t think that is objectionable

Counsel.
MR. SOURIS: Note our exception.
Q (By Mr. Renfro) Would you tell the Court what 

happened when you got over by Val Blakes?
A Well, we got out there and they were parked on 

[fol. 416] the side of the road and the boy was lying 
across the seat. His feet were in the front seat and his 
head hanging over the back seat. They were holding him 
trying to put the handcuffs on him, and we helped them 
put the handcuffs on him.

Q Did he say anything at that time?
A Well, cussed us some.
Q Well, did he or not make any threats to the officers?
MR. SOURIS: Now, Your Honor—
A No, I don’t remember of any threats. He just 

cussed us.
Q What did you do then?
A Carried him to the county jail.
Q All four of you?
A Uh-huh.
MR. RENFRO: If the Court please, that would be the

gist of his testimony. The State’s theory in this thing is 
that a felony had been committed, the Defendant was in 
flight and they had not had time to get a magistrate and 
get a warrant issued.

THE COURT: Counsel, do you want to cross ex-
ffol. 417] amine?

MR. SOURIS: Please.
THE COURT: All right, go ahead.

CROSS EXAMINATION 

BY MR. SOURIS:
Q Mr. Gary, did you testify that you received infor­

mation to stop any Negro?



32

A  Yeah.
Q That is your testimony?
A  Yes.
Q It didn’t make any difference who he was, what he 

was doing or anything else. You were to stop and arrest 
the man, is that correct?

A Detain him.
Q Detain him. That means arrest, does it not?
A Yes.
Q If you are going to detain a man, he can’t walk 

off, can he?
A  Well, I could check his car.
Q Mr. Gary, be honest with the Court and me. Your 

orders were to detain any Negro. That meant that you 
[fol. 418] were to hold him there, is that correct?

A Yes, sir.
Q All right. Now, that is what you did, isn’t it?
A Yes.
Q When you stopped Elmer Branch, he couldn’t have 

left, could he? He couldn’t have driven off, because you 
would have stopped him, wouldn’t you?

A No, he couldn’t have driven off.
Q All right. Did you see him commit any felony?
A  No.
Q Did he commit anything in your presence, any dis­

turbance of the peace?
A No, not at that time.
Q You didn’t see him do anything, did you, before 

you placed him under arrest?
A No.
Q All right. The only information you had was to 

stop any Negro, is that correct?
A Yes, sir.
Q All right. Did you ever get a search warrant or 

a warrant for the arrest of Elmer Branch?
A Didn’t have time.
Q Didn’t have time. You didn’t know who he was, 

did you?
A No, sir.

[fol. 419] Q You had no description of him?
A No description.



33

Q You didn’t know what kind of car?
A No.
Q You were just stopping each and every car at 

random, is that correct?
A Right.
Q Did you ever see a search warrant from the time 

that you stopped Elmer Branch until the time you went 
to Blake’s Wrecking Yard, you testified, and they were 
holding this Defendant?

A No.
Q You say that they had him—  You say “ they” . 

Members of the Sheriff’s Department?
A  Yes.
Q You say they had him across the front seat holding 

him?
A  Yes.
Q He was trying to get away from them, trying to 

break loose and extradite himself from custody?
A  Yes.
Q That is what you saw and what you understood 

was going to happen?
A Yes.
Q You are familiar with the daily notes of the Ver- 

[fol. 420] non Police Department?
A  That is right.
Q I show you a copy here of the daily notes for ap­

proximately 2 :45 a.m., May 9, 1967. Would you read the 
section there, starting at that point right there, please, 
sir?

A Right here?
Q Yes.
A “ Stop every car that has colored subjects” .
Q Stop every car?
A Yes.
Q Containing colored subjects.
MR. SOURIS: Your Honor, we introduce the daily

notes in evidence in support of our objection to the testi­
mony.

THE COURT: All right. Only that portion?
MR. SOURIS: Only that portion, yes.



34

Your Honor, I have prepared a brief which I will sub­
mit to the Court.

THE COURT: Now, Counsel, to assist the Court in
ruling on your objection here, now, the items that would 
be introduced in evidence would be the clothing, would it 
[fol. 421] not? I am being presumptuous here. Were you 
going to introduce the clothing into evidence at this time?

MR. RENFRO: Yes, and the shoes, too.
MR. SOURIS: Your Honor, we are objecting to the

arrest. We are objecting to any mention of the arrest. It 
was illegal. We object to the introduction of any testi­
mony whatsoever concerning the initial purported arrest 
and the apprehension and the subsequent call for help by 
the Sheriff’s Officers. I have cases to support that, Your 
Honor.

THE COURT: Is there anything other than the cloth­
ing that you purport to introduce into evidence?

MR. RENFRO: Yes. I have some pictures I want to
introduce and the telephone, the wiring.

THE COURT: What I mean, though, that might be
in this Defendant’s possession at the time he was ar­
rested.

MR. RENFRO: Nothing except his clothing, his pants
and shirt and shoes—

THE COURT: All right.
MR. RENFRO: — that I recall at this time. I don’t

[fol. 422] want to be barring myself.
I would like to put Mr. Smith on the stand and Mr. 

Inglish on the stand. Mr. Smith was called in and Mr. 
Inglish was on the desk at the time. Mr. Inglish then 
conveyed it.

THE COURT: All right, let’s develop it while we are
out of the presence of the jury then, so we can get this 
hatched out completely.

MR. SOURIS: One further question.
Q (By Mr. Souris) Do you arrest everyone that has 

their pants unzipped?
A No.
MR. SOURIS: That is all. No further questions.

LORAN A. SMITH, after having been first duly sworn, 
testified as follows, to-wit:



35

DIRECT EXAMINATION 

BY MR. RENFRO:
Q Your name is Loran Smith, Sheriff of Wilbarger 

[fol. 423] County?
A Yes, sir.
Q On or about the 9th day of May of this year, did 

you have an occasion, along about 2:45 in the morning, 
to call the desk, to radio the desk over at the City Hall?

A Yes, I did.
Q What request or orders did you gave at that time?
A I asked Officer Inglish to have his cars stop all cars 

coming from the north.
Q That had colored subjects in them?
A Yes. I briefly told him what happened.
Q You did tell him that Punk Stowe had called him 

and said that his mother had just been raped by a Negro?
A Yes, and he was headed towards Vernon.
Q And he was headed towards Vernon?
A Yes.
Q Where were you, Mr. Smith, at the time you called 

that order in?
A  At home.
Q At home. What did you do then?
A  I called two deputies, Woodard and Hulsey, and 

told them to head north, and briefly told them what hap­
pened, told them to get out as soon as they could, and I 
[fol. 424] would be out as soon as I made a phone call.

Q Well, now, where were you or did you know at any 
time that Woodard and Hulsey had the subject, the De­
fendant here, out by Blakes?

A When I got in the car, I called them on the radio 
and they said they had Elmer Branch in the car with 
them and they were just north of Blake’s Wrecking Yard, 
and I told them to stop and wait there for me.

Q Well, did you come up to where they were before 
they brought him to jail?

A Yes.
Q Then did Hulsey and Woodard and two policemen 

bring him on to jail?



36

A I talked to them a minute where I met them out 
north of Blakes, then I went on to where the crime hap­
pened north of town and observed some foot tracks, and 
then when I called them, in my opinion, the shoes he was 
wearing when I observed them out here made the same 
track out there. I called them and told them to place the 
subject in jail and bring me the shoes, to the scene.

Q I see.
A  And I wasn’t there when they took him to jail. I 

[fol. 425] was out at Mrs. Stowes.
Q But you are the one that gave this information to 

Inglish?
A Yes.
MR. RENFRO: I believe that is all.
THE COURT: Cross examination?

CROSS EXAMINATION 

BY MR. SOURIS:
Q Mr. Smith, you didn’t see a felony occur?
A  No.
Q You were just going on what had been telephoned 

in to you?
A Just information on the telephone.
Q And you didn’t have any description or anything 

else of the colored male?
A That is all.
Q Or what he was driving?
A (Nodded no)
Q And it was your order to stop any automobile con­

taining Negro males so they could be investigated, is 
[fol. 426] that correct?

A Yes.
MR. SOURIS: No further questions.
MR. RENFRO: That is all, Mr. Smith, for the time

being.
Do you want to stipulate that Inglish was on the desk 

at that time?
MR. SOURIS: Well, I subpoenaed him. Is he here?
MR. RENFRO: Yeah, he is sitting out there.



37

MR. SOURIS: You can ask him if that is what is in
his notes.

CHARLES INGLISH, after having been first duly 
sworn, testified as follows, to-wit:

DIRECT EXAMINATION 

BY MR. RENFRO:
Q Mr. Inglish, on May 9, 1967, at 2:45 in the morn- 

[fol. 427] ing, were you or not on the radio desk at the 
City Hall acting as Desk Sergeant at that time?

A Yes, sir.
Q Did you or not at that time receive the informa­

tion in this paragraph here from Fuzzy Smith?
A I did.
Q Is that the notes?
A Yes, sir.
Q That you took on the conversation which you had 

relayed to Mr. Hulsey and Mr. Woodard?
A Yes, sir.
Q And you also relayed that to Car 6 in which Don 

Gary and Mr. Mitchell were riding?
A Yes, sir.
MR. RENFRO: If the Court please, we would like to

introduce that entire paragraph from the notes.
THE COURT: As it relates to this particular offense?
MR. RENFRO: That is right.
THE COURT: Now, Counsel, let’s be careful, if the

jury wants to see this, that any extraneous notes on there 
relative to anything else is blocked out, if it’s displayed 
before the jury. Do you understand the Court’s instrue- 
[fol. 428] tion there, Counsel?

MR. SOURIS: Yes, Judge.
MR. RENFRO: Yes.
THE COURT: Let’s don’t hand that to the jury. Now, 

that is actually a photostatic or Xerox copy, is it not?
MR. RENFRO: Xerox copy.
THE COURT: Let me suggest that you trim off—
MR. SOURIS: Well, Your Honor, down at 5:00 a.m.

the wrecker was called to pick up the automobile.



38

THE COURT: If you want that in, the automobile of
this Defendant,—

MR. SOURIS: Yes, sir.
THE COURT: — that is all right, but let’s trim the 

other part out there. I don’t know what the notes about 
any other offenses are, but I don’t think they have any­
thing—

MR. SOURIS: Have no bearing whatsoever.
MR. RENFRO: Just routine stuff.
THE COURT: Well, I think probably they are not

admissible into evidence, and they ought to be blotted out 
[fob 429] or cut off.

MR. RENFRO: I don’t want them in.
THE COURT: I understand, but I just don’t want

them displayed to the jury.
MR. SOURIS: I have no questions of this witness.
THE COURT: All right.

(The exhibit hereinbefore referred to appears in 
this record at the page shown in the index of exhibits, 
and is marked for identification as Defendant’s Ex­
hibit A. (DX-A)

J. G. HULSEY, after having been first duly sworn, 
testified as follows, to-wit:

DIRECT EXAMINATION 

BY MR. RENFRO:
Q Mr. Hulsey, you are Deputy Sheriff, Wilbarger 

County, are you not?
A Yes.
Q Mr. R. V. Woodard is also a deputy sheriff?
A Yes, sir.

[fob 430] Q State whether or not you and Mr. Wood­
ard were together around 2:45 on the morning of the 
9th of May of this year?

A Yes, sir, we got together at Vic Robinson’s Texaco 
Station.

Q Had you received a call from the city desk?
A  I received a call from the Sheriff.



39

Q Sheriff over the telephone?
A  Yes, sir.
Q Over the telephone?
A  Yes, sir.
Q And what was the message that the Sheriff gave 

you and Mr. Woodard over the telephone?
A He told me to get in the car as soon as I could and 

head north. He called Woodard and had him also head 
north, and that Mrs. Stowe had been raped by a colored 
subject; to get out there on the road.

Q Well, did you all meet then down at the filling sta­
tion known as—

A Vic Robinson’s Texaco Station.
Q Vic Robinson’s Texaco Station?
A Yes, sir.
Q Did you or not at that time take Elmer Branch, 

the Defendant in this case, into custody?
[fol. 431] A Yes, sir, told him to get in the car, we 
wanted to talk to him.

Q Where did you go from there?
A We started out north toward Mrs. Stowes.
Q And how far did you get?
A To the intersection of 925 and 183, north of Val 

Blakes.
Q What happened at that place?
A The Sheriff called us before that and told us to 

hold up. He wanted to talk to us before we went any 
further.

Q Then what happened?
A He came by and got in the car and looked at the 

clothing and everything that Elmer had on, and told us 
to remain; that he would go on out and check that out 
further and let us know what to do from there. We sat 
there until he called back. He called back on the radio 
and said, “ That is the subject we want. Put him in the 
County Jail.” So we started, and he threw a walleyed fit 
and said we wasn’t big enough to put him in that jail; he 
was not going under no circumstances, we would have 
to kill him first. So we stopped and attempted to hand­
cuff him. It’s pretty hard to do in a car by yourself, so 
I called for some assistance from the city officers, and



40

[fol. 432] Mitchell and Gary came out and helped us put 
the handcuffs on him, take him on into jail.

Q They came, the deputy sheriffs requested?
A  Yes.
Q What happened then?
A  We took him on to jail, and the Sheriff wanted us 

to bring his shoes out there.
Q He called back in from Stowes?
A That is when he called on the radio to put him in 

jail and bring his shoes out there.
Q At the time you were sitting out there on the 

highway?
A  Yes.
Q At that time is when he told you to bring the shoes?
A Yes. When he first called back and said, “ That is 

the man. Put him in jail and bring me his shoes.”
Q And that is when the Defendant went haywire?
A Right. So we got him in jail and I took the shoes 

off of him, and we put him in a cell and took the shoes 
and went back out and met the Sheriff out there.

Q Did you or not then take the shoes out to Stowes? 
[fol. 433] A Yes, sir.

Q Did you see any tracks at the Stowes?
A Yes, sir.
Q Did you or not compare those tracks with the soles 

of those shoes?
A Yes, sir. I photographed them.
Q I will ask you whether or not they matched?
A Yes, sir.
Q Was there any distinctive markings on the bottom 

of the shoes?
A Yes, sir.
Q Would you tell what—
MR. SOURIS: Your Honor, we object to all this line

of testimony.
THE COURT: This is out of the presence of the jury,

Counsel. I am going to let him develop it and then the 
Court will rule on it.

MR. SOURIS: Note our exception.
A Yes, sir. There was a break, I believe it was the 

left heel on the inside, about that long that shows very 
distinctively.



41

Q Did that break show distinctively on the track out 
[fob 434] at the Stowes?

A Yes.
Q Did you or not later take photographs of the shoes 

placed on edge by the track?
A Yes, sir. Also, there was a ruler lying there beside 

of it.
Q And who all, if anyone else, saw these shoes placed 

by the track and saw them compared with the track?
A Well, there was R. V. Woodard and Sheriff Smith. 

I believe Punk Stowe was there, and if I am not mistaken, 
Leonard Woodard was there. He wasn’t, there when I 
took the pictures, but he was there when I put the shoes 
down and made the comparison.

Q Mr. Hulsey, did you find any car tracks?
A Yes, sir. Also found the tracks where he had gone 

from the car to the house, and then back to the car 
again parked in the road that goes to an irrigation well 
north of the house.

Q Made by those same shoes?
A Yes, sir, those shoes made those whole tracks.
Q Did you observe whether or not that car left out 

to the south?
A As best I could tell, it did. The tracks came out 

[fol. 435] and beared to the north. Evidently, from what 
I would figure out, he backed out, the back end toward 
the north and came this way.

MR. RENFRO: I believe that is all.

CROSS EXAMINATION 

BY MR. SOURIS:
Q Mr. Hulsey, when you arrived at the Vie Robinson 

Texaco Station, was Elmer Branch in custody of the City 
Police Officers?

A I suppose you could say that, Mr. Souris. He was 
standing beside the car, this maroon Mustang.

Q And you and Mr. Woodard took him into custody?
A Yes, sir.
Q You knew who he was?
A Yes.
Q You had handled him before?



42

A Yes, sir.
Q And you automatically assumed there was a good 

chance he was mixed up in anything that was a prob- 
[fol. 436] lem?

A  Not necessarily that way.
Q But you knew that he had a criminal record?
A  Yes, sir.
Q And from that time on he was not free to leave?
A Not hardly.
Q All right. In fact, whenever you told him you 

were going to take him to jail, he tried to extradite him­
self from custody, did he not?

A Yes. That was somewhat later than that time, 
however.

Q Well, he heard the radio message from the author­
ity of Sheriff Smith to take him to jail?

A Yes.
Q And that is when he said, “ I am not going” ?
A Right.
Q All right. Did you at any time ever see a search 

warrant?
A No, sir.
Q Did you ever see a warrant of arrest until the 

next day or have you ever seen a warrant of arrest?
A It was after that, yes, sir.
Q From the time you appeared at the Texaco station 

until sometime the next day, you did not see a search 
[fol. 437] warrant, you did not see a warrant for his 
arrest?

A That is right.
Q You took the shoes, as you testified, from his per­

son?
A  Right.
Q They were taken out there and compared. You 

yourself took the photographs?
A  Yes, sir.
Q And you made the arrangements and what you 

thought was necessary as an officer?
A Yes, sir.
Q You also saw some tire tracks and so forth?
A Yes, sir.



43

Q Did you compare them with the tires on the Mus­
tang?

A Yes, sir.
Q Did they match?
A  Yes, sir.
Q Do you know how many Mustangs there are in 

Wilbarger County?
A Yes, sir.
Q Do you reckon any others would match?
A I don’t know about that.

[fol. 438] MR. SOURIS: I have no further question of
this witness.

RE-DIRECT EXAMINATION 

BY MR. RENFRO:
Q Mr. Hulsey, do you know who it was called me 

that morning?
MR. SOURIS: Now, Your Honor, that would be—
THE COURT: I think that would probably have to

be hearsay.
MR. SOURIS: I think so.
A I don’t know for sure. If I am not mistaken, I 

did. I am not positive about that, but I think I did.
MR. RENFRO: I think I can develop that.
THE COURT: All right. Any further questions of

this witness?
[fol. 439] MR. SOURIS: No further questions.

THE COURT: All right. Any further witnesses?
MR. RENFRO: Judge, Mr. Woodard’s testimony

will be the same. I don’t see any use to put that on 
there.

THE COURT: All right. And you are going to prof­
fer into evidence the clothing the Defendant was wear­
ing, is that right?

MR. RENFRO: That is right.
THE COURT: Your objection is it’s the fruit of an

illegal arrest, right?
MR. SOURIS: Yes, Your Honor. We have submitted

to you this brief based first upon the Constitution of



44

the State of Texas, then upon Article 8823 of the Texas 
Code of Criminal Procedure, and Article 106. I have 
cited for you approximately fifteen cases of which four 
are rape cases wherein the facts and circumstances are 
parallelled fairly closely to the facts and circumstances 
in question in this case.

I wish to point out to the Court that the cases have all 
held that it is what preceded the arrest and not the 
fruits, what the fruits developed, and that is what the 
[fol. 440] testimony has been, in my opinion, whether 
they matched tracks out there or whether they did not. 
Because the shoes that were taken from this Defendant, 
if  they matched, were subsequent to his illegal arrest.

Your Honor, 38.23 is relied upon by the Defendant. 
“ No evidence obtained by an officer or other person in 
violation of any provisions of the Constitution or laws 
of the State of Texas, or of the Constitution or laws of 
the United States of America, shall be admitted in evi­
dence against the accused on the trial of any criminal 
case.”

Section 9 of the Constitution, Article 1: “ The people 
shall be secure in their persons.”

Now, Your Honor, it’s regretable that the arrest had 
to be made on such an open accusation of “ stop every 
person of the Negro race” . That would mean if it had 
been a preacher, if it had been a pregnant woman, they 
would have been subject to a stop and a search.

THE COURT: Counsel, pardon me just a moment,
One of the instructions there, and I looked at it hastily, 
did it say coming from the north or on that highway?

MR. RENFRO: Yes; and males, not females.
[fol. 441] MR, SOURIS: Your Honor, I believe that 
is incorrect. “ If we would stop every car that had col­
ored subjects in them and hold them until they could 
get there.”  There is no mention there of only cars com­
ing from the north.

THE COURT: All right.
MR. SOURIS: The reference to north is the address

of the complaining witness in this case.
Furthermore, Your Honor, we would rely upon 1.06. 

“ The people shall be secure in their persons, houses,



45

papers and possessions from all unreasonable seizures or 
searches. No warrant to search any place or to seize 
any person or thing shall issue without describing them 
as near as may be, nor without probable cause support­
ed by oath or affirmation.” Certainly, there was not the 
least intimation here a felony was committed. Now, 
based upon our Supreme Court decision in Heath v. 
Boyd, Supreme Court, 1943, I call the Court’s attention 
to the only circumstances there that an arrest may be 
made without a warrant are probable cause.

THE COURT: Counsel, let me have an opportunity
to study this over just about five minutes here. I think 
[fol. 442] the Court will then be in a position to make a 
ruling on it.

Did you have anything in particular you wanted to 
submit, Mr. Renfro?

MR. RENFRO: Nothing except probable cause.
THE COURT: All right.

(Mr. Loran A. Smith was again placed on the stand, 
and testified further, to-wit:)

Q (By Mr. Renfro) Mr. Smith, when you directed 
Mr. Hulsey and Mr. Woodard to stop the cars coming in 
from the north—

MR. SOURIS: Your Honor, I object to that. He is 
trying to discredit his own witness here.

THE COURT: He can testify to whatever he did.
MR. SOURIS: He has already testified once, Your

Honor.
THE COURT: Well, he can put him back on the

stand, Counsel.
Q (By Mr. Renfro) Did you or not direct them to 

[fol. 443] any specific location?
A Highway north of town, and I told Woodard to go 

to the cutoff that went from the highway towards Altus 
to 287 toward Chillieothe. There is a cutoff out there, 
and I told him to get on that cutoff that leads to 287, in 
case traffic went threw there.

Q Now, had you received a call from Punk Stowe?
A Yes.
Q What information did he convey to you?



46

A Wanted to know if  I could come out there; said a 
Negro broke in the house and raped his mother. He said, 
“ I have already called the City Police.” I knew they 
was out in the car. Then I said, “ I will be right on out.” 
Then I called the deputies, then I called back and talked 
to Inglish at the Police Station, because I knew Punk 
had already called him.

Q Did Mr. Stowe say anything about which way the 
car was directed?

A Coming towards Vernon.
Q In route to Vernon?
A Yes.

[fol. 444] RE-CROSS EXAMINATION 

BY MR. SOURIS:
Q Mr. Smith, of your own knowledge, Elmer Branch 

was arrested out there without a warrant, is that not 
correct?

A Yes.
Q You didn’t secure and you haven’t seen a warrant?
A At the time he was arrested, yes.
Q When was he taken before a magistrate?
A I believe it was the next morning around 9:30.
Q Would 10:00, 10:30 in the morning be—
A  It could have been. It was the next morning.
Q Mr. Smith, have you ever had either one of the 

Justices of the Peace refuse to come down and issue a 
search warrant or a warrant at any time of the day 
or night?

A I don’t believe so. I wasn’t present when the com­
plaint was signed.

Q The complaint was signed by someone other than 
yourself?

A Yes.
[fol. 445] MR. SOURIS: No further questions.

THE COURT: All right, any further testimony?
MR. RENFRO: Yes. I want Punk Stowe.
THE COURT: All right.



47

MR. G. R. STOWE, after having been first duly sworn, 
testified as follows, to-wit:

DIRECT EXAMINATION

BY MR, RENFRO:
Q Mr. Stowe, what is your initials?
A G. R. Stowe.
Q G. R. You are commonly known as Punk Stowe?
A  Yes, sir.
Q Mr. Stowe, on the morning of the 9th of May, 

1967, did you by telephone call the Sheriff, Loran Smith?
A I did.
Q What if anything did you tell him at that time?
A I told him my mother had been raped, and that 

[fol. 446] she thought the car went south; to stop every­
body coming in from the north of town.

Q You did tell him that the car was going south?
A Going south, yes, sir.
Q Did you also call the city desk?
A  I did.
Q And give them the same information?
A I did.
Q And how long after your mother got to your house 

did you call that information in?
A Well, I would say within five minutes. Soon as I 

got her tamed down and got all the details, I went right 
in the house and called.

Q You didn’t, of course, know who did the raping 
at all?

A No, I didn’t,
Q You knew somebody had raped your mother, and 

he was fleeing from the scene?
A I knew it was a Negro.
MR. RENFRO: That is all.
MR. SOURIS: No questions.
THE COURT: All right.
MR. SOURIS: Your Honor, I would ask leave of the

[fol. 447] Court to file this brief in toto, the same one 
I gave you, and the authorities therein.

THE COURT: Yes, sir.



48

All right, the Court is going to overrule the objection 
to the admissibility of the evidence.

MR. SOURIS: We except to the Court’s ruling, Your
Honor, and would like to perfect a bill to that effect.

THE COURT: Yes, sir.
Mr. Souris, the Court understands you have objected 

to all of this testimony with respect to the arrest, the 
clothes taken from the Defendant. If you desire to do 
so, the Court will afford you a running objection on this 
without the necessity of your having to object,

MR. SOURIS: Thank you, Your Honor. We even
wish to make it more explicit. We object to any men­
tion of the automobile, any mention of tire tracks for 
the same reason, that they are fruits of the illegal ar­
rest.

THE COURT: The Court understands that you have 
objection to all of this line of testimony without the ne­
cessity of having to object.

Let’s bring the Jury in, please.
[fol. 448] (At this time the Jury returned to the court­

room and the following proceedings were had, to- 
w it:)

THE COURT: I believe you were sworn a few min­
utes ago?

MR. LORAN SMITH: Yes.

MR. LORAN A. SMITH, having been previously 
sworn, testified as follows, to-wit:

DIRECT EXAMINATION

BY MR. RENFRO:
Q Your name is Loran Smith?
A Yes, sir.
Q Sheriff of Wilbarger County, Texas?
A  Yes, sir.
Q Mr. Smith, on or about the 9th day of May, 1967, 

in the early hours of the morning, did you or not re­
ceive a call?



49

A  Yes, I did.
Q Who was the call from?
A From Guin Stowe, Punk Stowe.

[fol. 449] Q Commonly known as Punk Stowe?
A Yes.
Q What information, if  any, did he convey to you?
MR. SOURIS: Your Honor, I am going to object to

that on the basis it’s hearsay. The witness is available 
to testify as to what he told the Sheriff. It would be 
admissible from him and not from the Sheriff as hearsay.

THE COURT: If he can identify his voice, I am 
going to allow him to testify.

Q (By Mr. Renfro) Could you identify Punk’s 
voice?

A  Yes.
MR, SOURIS: Note our exception.
Q As a matter of fact, he is a brother-in-law of your?
A Yes.
MR. SOURIS: Now, Your Honor, that is uncalled

for.
THE COURT: Sustain your objection. Gentlemen of

[fol. 450] the Jury, you are not to consider it for any 
purpose.

MR. RENFRO: He knew his voice.
THE COURT: All right, for that limited purpose

only.
MR. SOURIS: May I ask the Court to instruct the

Jury to disregard that completely for any purpose.
THE COURT: So far as the relationship of the

Sheriff with G. R. (Punk) Stowe, you will disregard any 
relationship and not consider it for any purpose what­
soever, other than the limited purpose for which it was 
admitted.

Q (By Mr. Renfro) Do you know or not the voice 
of Punk Stowe?

A Yes, I know his voice. I talk to him on the phone 
quite a lot.

Q And as a result of that call, what if anything did 
you do?

A I directed two deputies to go north of Vernon on 
the highway to stop any colored subject in a car.



50

Q Do you know what happened, if  anything, after 
that?

A After I called them?
Q Yes.

[fol. 451] A I called the City Police Station.
Q What information did you give them?
A I told them to have their cars stop anything com­

ing from the north with colored subjects in it.
Q Did you later receive any radio messages from 

either of the city cars or your own—
A As soon as I got in my car, I started talking to my 

deputies in their car, and at that time they had Elmer 
Branch in the car with them.

Q And where were they at that time?
A About a mile north of Blake’s Salvage on the Altus 

Highway, north of Vernon.
Q Did you or not then go to them?
A Yes.
Q What if anything did you see at that time?
A I talked to them and talked to Elmer Branch and 

observed his shoes and his clothing. We also stopped one 
truck there at a roadblock, and then I went on out to 
where the crime happened.

Q Did you have any further conversation with the 
Sheriff’s car?

A Yes. A little later I called them by radio from 
the location where the crime happened.

Q What did you instruct them to do?
A I told them to place him in jail and bring his 

[fob 452] shoes back to the scene of the crime.
Q Mr. Smith, would you be able to identfy his shoes 

and trousers and his shirt?
A Yes.
MR. SOURIS: Your Honor, we are going to object

to the introduction of any shoes until custody has been 
shown and proven.

Q (By Mr. Renfro) Sheriff, have you had the cus­
tody of those shoes, pants and shirt every since the night 
of May 9, 1967?

A I have had those shoes.



51

MR. SOURIS: “ Those shoes” ,. Your Honor, is incom­
plete. I would like to ask him to describe the shoes. 
“ Those shoes”  is meaningless to this Court and jury.

THE COURT: All right, you may answer the ques­
tion. Describe the shoes.

A  White tennis shoes.
Q. (By Mr. Renfro) Are they the same shoes that 

you saw on the Defendant?
A  Yes.

[fol. 453] Q When you went to question your own 
deputies?

A I looked at those shoes on the Defendant in the 
car. I went on to the scene and looked at the tracks, 
and that is when I asked them to bring the shoes out 
there.

Q And you have had custody of these shoes ever 
since?

A  Yes.
MR. SOURIS: We have a running objection on the

introduction of all this testimony?
THE COURT: Yes, sir.
Q (By Mr. Renfro) Is that the shoes there?
A Yes, sir. These shoes have been in my vault every 

since then.
Q Are there any distinguishing marks on the bottom 

of those shoes?
A There is some worn places and a crack on one of 

the heels.
Q Is this the crack you refer to right here?
A Yes, sir.
Q Mr. Smith, did you later see those shoes over there 

at Mrs. Stowe’s house?
A Yes, sir.

[fol. 454] Q Did you see any tracks?
A Yes, sir.
Q Did you see those shoes compared to the tracks?
A Yes, sir.
Q State whether or not they did fit the tracks.
A Identical.
Q They were identical?



52

A  Yes.
Q State whether or not the split in the lefthand shoe 

was plain in the tracks in the sand?
A  Yes, sir.
Q Did you observe where the tracks led to and led 

from out there at Stowe’s house that night?
A This track that I observed out there was in the 

driveway near her bedroom window on the south side 
of the house.

Q That is the only place that you saw it?
A Yes.
Q Now, I will ask you whether or not that is the 

shirt—
MR. SOURIS: Your Honor, we are going to object

to dragging things out of this without setting a predicate 
or without proof by this witness he can identify them, 
[fol. 455] THE COURT: All right, Counsel, you will 
have to prove up your custody.

Q (By Mr. Renfro) Did you observe the shirt and 
trousers the Defendant was wearing?

A Yes, sir.
Q Have you had them in your custody since that 

night?
A Not all the time.
Q What time—
MR. SOURIS: What was that answer?
THE COURT: “ Not all the time.”
Q (By Mr. Renfro) Where were they at the time 

when they were not in your custody?
A In the lab in Austin.
Q In the lab in Austin. Is that the clothes that you 

sent to the lab in Austin?
A Yes, sir.
Q They are the identical clothes you sent?
A Yes, sir.
Q And when they were returned, they are still the 

identical clothes?
[fob 456] A Yes, sir.

Q And you can swear to that?
A Yes, sir.



53

Q All right.
MR. SOURIS: We object to their introduction, Your

Honor. There has been a break in the custody of these 
clothes. We feel they have not been properly identified. 
There have been no identifying marks presented for 
which this witness can testify that that green shirt is 
the green shirt.

THE COURT: I don’t believe the chain is complete
there. I sustain your objection.

MR. SOURIS: Thank you, Your Honor.
MR. RENFRO: If the Court please, now, I am ask­

ing if those were the identical clothes he sent down there, 
and were those the identical clothes again that come 
back to them, if he could swear to them, and he said he 
could.

THE COURT: Sustain the objection, Counsel.
Q (By Mr. Renfro) The shoes have been in your 

custody all the time?
[fol. 457] A Yes.

MR. RENFRO: I believe that is all, Mr. Smith.
THE COURT: Cross examination, Counsel?

CROSS EXAMINATION 

BY MR. SOURIS:
Q Mr. Smith, when this Defendant was arrested, did 

you have a warrant for his arrest?
A I was at the scene of the crime when he was ar­

rested.
Q All right. It was on your authority that he be 

arrested?
A  Held, yes, sir.
Q Charged and placed in the County Jail?
A Yes, sir.
Q All right. Was he taken before a magistrate that 

night?
A I believe the next morning.
Q All right. That night he was not taken before 

[fol. 458] any magistrate?
A  So far as I know, he wasn’t.



54

Q Mr. Smith, the best of your opinion, and it has 
been your opinion, has it not, those shoes match the 
tracks that you found on the north side— the south side 
of Mrs. Stowe’s house?

A Yes.
Q Were those good, solid footprints that you saw out 

there, complete footprints?
A They were pretty good footprints.
Q Mr. Smith, what was the ground out there in that 

driveway?
A It’s got a little sand in it. It’s not too sandy. It’s 

gravelled.
Q A lot of gravel?
A Yes.
MR. SOURIS: No further questions.
MR. RENFRO: That is all, Mr. Smith, at this time.

*  *  #  *

THE COURT: You were sworn a few minutes ago?
MR. HULSEY: Yes, sir.

[fol. 459] MR. J. G. HULSEY, having been previously 
sworn, testified as follows, to-wit:

DIRECT EXAMINATION

BY MR. RENFRO:
Q Your name is J. G. Hulsey?
A Yes, sir.
Q Deputy Sheriff, Wilbarger County, Texas?
A Yes, sir.
Q Mr. Hulsey, on the morning of the 9th day of 

May, 1967, did you receive a call from anyone?
A Yes, sir, from Sheriff Smith; called me about 2:45.
Q And what, if anything, did he order you to do?
A Told me to get in the car and get on the Altus 

Highway; that Punk’s mother had been raped by a Ne­
gro male, to try to apprehend the subject coming from 
that direction.

Q Was any other officer with you?
A Not at that time. He told me he would call R. V. 

Woodard, and I got in the car and started north and I 
was notified, when I went into service, I was notified



55

[fol. 460] bythe city unit that they were at the intersec­
tion of the expressway and the Altus Highway at Vic 
Robinson’s Texaco Station with the subject stopped there.

Q Did you and Mr. Woodard then proceed to that 
location?

A Yes, sir.
Q Or did you meet Woodard there at that location?
A  Yes, sir.
Q At that time did you take the Defendant here into 

custody?
A Yes, sir.
Q And then what, if  anything, did you do with him?
A  We started out the Altus Highway towards the 

Stowes to see if we could get him identified as being the 
subject that was out there, and in the process or on the 
way the Sheriff called and told us to hold up. He wanted 
to talk to us before we went out there. So he came and 
got with us at the intersection of Farm Road 925 and 
the Altus Highway, which I believe is 183, north of 
Vernon.

Q What happened there, if anything?
A He told us, after looking at the shoes and the 

clothes Branch had on, to remain there and he would go 
on out to the scene and call us back, which he did.
[fol. 461] Q When he called you back, what instruc­
tions did he give you?

A _ He said that that was the subject and to put him 
in jail, bring his tennis shoes—

MR. SOURIS: Your Honor, I am going to object to
any testimony about what the Sheriff said. The Sheriff 
has been on the stand.

THE COURT: Overrule your objection.
MR. SOURIS: Note our exception.
Q (By Mr. Renfro) What did you all do?
A We turned around and started back to jail with 

him, and he threw a fit, blew up, and said he wasn’t 
going to jail; no way we could take him there. We 
would have to kill him first. So I was driving, and I 
grabbed a set of handcuffs and stopped the car and 
handed the cuffs to Woodard and we started to put the 
handcuffs on him.



56

Q Did anyone come to your assistance?
A Yes. I called for some assistance, because we 

didn’t have enough room and couldn’t manage to hand­
cuff him in the car.

Q Who if anyone came to your assistance? 
ffol. 462] A Don Gary and Jimmy Mitchell.

Q Did you at that time put the cuffs on him?
A Yes, sir.
Q And what, if  anything, did you do_ then?
A We carried him to jail and took his shoes off of 

him, put him in a cell, and took the shoes back to the 
Stowes residence and met the Sheriff out there.

Q All right. Now, Mr. Hulsey, did you know the 
shoes that the Defendant had on?

A Yes, sir.
Q Do you know whether they have been in the cus­

tody of the Sheriff’s Department every since they were 
taken?

A Yes, sir, they have.
Q I will ask you whether or not this is the shoes of 

the Defendant?
A  Yes, sir, those are the shoes that I took off of him 

at the jail, and the ones we have had in the vault every 
since.

Q Now, was that split there on that heel at the time?
A Yes, sir, it was just like that.
Q Mr. Hulsey, did you later take those shoes out to 

the Stowes?
[fol. 463] A Yes, sir.

Q What if anything did you do then?
A I laid them down beside the track that was made 

there at the scene and took a photograph of them.
MR. SOURIS: Your Honor, I have a running objec­

tion to all this testimony.
THE COURT: Yes, sir, I understand.
Q (By Mr. Renfro) Will you state whether or not 

in comparing the shoes to the tracks, whether or not in 
your opinion those shoes made those tracks?

A Yes, sir, in my opinion they were the ones that 
made them. They were identical to the tracks.



57

MR. SOURIS: Your Honor, I am going to object. He
has not been classified and proved to be an expert.

THE COURT: Overrule your objection.
MR. SOURIS: Note our exception.
Q (By Mr. Renfro) Mr. Hulsey, there is a split 

heel on one of those shoes on the lefthand shoe, is that 
[fol. 464] right?

A  Yes, sir, the lefthand heel.
Q State whether or not that marking showed up in 

those tracks perfectly?
A It did.
Q Was it perfect?
A Yes, sir.
Q Have you got those pictures with you that you 

took?
A Yes, sir.
Q May I have them, please?

(Handed to Mr. Renfro.)
THE COURT: Do you want to see them, Counsel?

(Handed to Mr. Souris.)
MR. SOURIS: We object to the introduction of them,

Your Honor.
THE COURT: What is the basis?
MR. SOURIS: There hasn’t been an adequate predi­

cate laid.
THE COURT: The Court is going to afford Counsel

[fol. 465] an opportunity to lay a predicate and then 
rule on your objection.

MR. SOURIS: Thank you, Your Honor.
Q (By Mr. Renfro) I believe you stated that you 

placed the shoes down beside the tracks out there and 
took the photograph?

MR. SOURIS: Your Honor, he is testifying for the 
witness.

A Yes, sir.
THE COURT: I believe that testimony has been

given. That is repetition.
Q And are these the pictures that you took?



58

A Yes, sir. This was taken in the driveway south of 
the house, and so was this one, a picture of the left shoe 
and a ruler and the track between them. This one is a 
picture of the same track taken north of the house at 
the road leading down to an irrigation well. Those tracks 
led from that location to the house and back to this 
[fol. 466] location.

Q I see.
MR. RENFRO: I would like to introduce all three of 

these photographs.
THE COURT: Counsel, unless it shows that they

correctly portray what he saw out there, the predicate 
hasn’t been laid.

Q (By Mr. Renfro) Mr. Hulsey, are those the pic­
tures that you took?

A Yes, sir.
Q And of the impressions made by these shoes?
A  Yes, sir.
Q Do they correctly portray the tracks there?
A Yes, sir. In my opinion, they do.
THE COURT: All right, the Court is going to ad­

mit them into evidence.
MR. SOURIS: Note our exception thereto.

(The photographs identified as State’s Exhibits 1, 
2 and 3 appear in this record at the page shown in 
the index of exhibits.)

[fol. 467] Q (By Mr. Renfro) Mr. Hulsey, did you 
have an occasion out there to examine the hallway in 
the home of Mrs, Stowe?

A  Yes, sir.
Q Did you have an occasion to observe the telephone?
A  Yes, sir.
Q What condition, if any, was that phone in?
A The receiver wire was jerked off the telephone.
Q Did you or not take a picture of that telephone 

and the condition it was in when you got out there?
A Yes, sir.
THE COURT: Counsel, one qualification the Court

is going to make on any picture admitted into evidence 
is that any writing on the back is going to have to be



59

obliterated before they are displayed to the jury, either 
by pasting on or some means.

MR. SOURIS: This is a new set of pictures, Your
Honor. I would like to see them, if I may.

THE COURT: They haven’t yet been admitted into
evidence, Counsel.

Q (By Mr. Renfro) Is this the picture you took of 
[fol. 468] the telephone?

A Yes, sir, it is.
Q I believe the wire shows to be jerked off the re­

ceiver?
A Yes, sir, jerked loose from the receiver. That is 

in the hallway on the north side of the hall, right across 
the hall .from her bedroom door.

Q Mr. Hulsey, did you or not take any picture of 
the kitchen window?

A Yes, sir. I believe I took two of those.
MR. RENFRO: I would like to introduce this pic­

ture of the telephone.
THE COURT: Counsel, until you show that it cor­

rectly portrays what he saw out there, I can’t admit it 
into evidence.

Q (By Mr. Renfro) Is that a picture of what you 
saw?

A Yes, sir.
Q Does it correctly show the kitchen window and its 

being open and all the details of it?
A Yes, sir. The picture of the telephone shows the 

cord hanging down there where it was jerked loose, and 
the picture of the window shows that the window was 
[fol. 469] standing open and in the position it was when 
I got out there.

Q All right.
THE COURT: All right.
MR. SOURIS: We object to the pictures of the win­

dow as superfluous in this case.
THE COURT: Overruled.
MR. SOURIS: Note our exception.

(The photographs identified as State’s Exhibits 4, 
5 and 6 appear in this record at the pages shown 
in the index of exhibits.)

MR. RENFRO: I believe that is all at this time.



60

CROSS EXAMINATION 

BY MR. SOURIS:
Q Mr. Hulsey, have you ever seen any other tennis 

shoes that looked like those?
[fol. 470] A No, sir, not just like those.

Q You wouldn’t testify whether or not they are a 
common pair or an odd pair or anything else, would you?

A They are pretty odd with the markings they have 
on them.

Q Pretty well worn, aren’t they?
A Yes, sir.
Q Would you say that any tennis shoes that had the 

appearance those have would be well worn on the bot­
tom?

A Probably, but not in the exact places those are.
Q Mr. Hulsey, how long have you been in law en­

forcement?
A Since January, 1956.
Q All right. Since you have been in law enforce­

ment, have you had the occasion to investigate many 
crimes?

A Quite a few, yes, sir.
Q You take quite a few of the pictures for the Sher­

iff’s Department?
A That is right.
Q You do the fingerprinting?
A Some of it.
Q Where are the fingerprints that were made at the 

[fol. 471] Stowe residence on May 9, 1967?
A  I beg your pardon?
Q Where are those fingerprints that were made at 

the Stowe residence on May 9, 1967?
A I didn’t obtain any fingerprints.
Q You didn’t obtain any?
A No, sir.
Q Did you try?
A Tried to.
Q Where did you try?
A Oh, around the window where the entrance was 

gained.



61

Q All right.
A  But nothing but smudges there.
Q Where else?
A  That is all.
Q Mr. Hulsey, you have testified that this picture 

portrays the true and exact circumstances of the tele­
phone, is that correct?

A That is right.
Q Did you check that telephone for fingerprints?
A No, sir.
Q Why didn’t you?
A Because it had been handled by too many people. 

You can’t take fingerprints off those things.
[fol. 472] THE COURT: Counsel, just a minute be­
fore any picture is displayed to the jury. Any writing 
that is on the back of those pictures is not admitted into 
evidence. I don’t know unless it’s just a name or some­
thing to identify it on there. I haven’t seen what the 
writing is.

MR. SOURIS: I don’t think it’s any problem. You
might instruct the jury not to look at the back of them. 
I am sure they wouldn’t.

THE COURT: If it’s just merely identification. I
didn’t know what was written on the back of the picture, 
and obviously any extraneous writing—

MR. SOURIS: I would like for the jury to see the 
telephone.

THE COURT: All right.
MR. SOURIS: Pass that around.

(Handed to the jury.)
Q (By Mr. Souris) Mr. Hulsey, you say the tele­

phone had been handled by a lot of people, is that right? 
The reason you didn’t try to take any fingerprints on it?

A It probably had. They all usually do. In these 
[fol. 473] circumstances it was Mrs. Stowe’s home, and 
I don’t know how many times she handled it since it had 
been cleaned and so forth. You just don’t pick up finger­
prints off objects like that.

Q Mr. Hulsey, you knew, and you took the picture 
of the telephone, and you knew that the wire had been 
jerked off.



62

A Yes, sir.
Q And you knew that it had been handled by the 

Defendant?
A  The telephone necessarily hadn’t been. You can 

jerk a wire into without grabbing ahold of the telephone. 
You could grab the wire.

Q How would you guess that he jerked— that who­
ever it was jerked the wire off that telephone?

A Well, that is hard to say. It would just be a guess 
on my part or anyone else’s, with the exception of him.

Q Your guess would be as good as anybody else’s, 
wouldn’t it?

A With the exception of the one that jerked it off, 
yes, sir.

Q But isn’t it very likely that he put one hand on 
the telephone and one hand on the wire and jerked it? 
[fol. 474] A It’s possible.

Q Where did you find the telephone?
A On the stand.
Q Right there just like it is?
A In the picture, yes.
Q All right. Mr. Hulsey, if the individual that jerked 

that wire loose had not held the telephone, he would have 
jerked the telephone off the stand, wouldn’t he?

A Possibly.
Q And there is a good reason to believe there had to 

be some fingerprints on that telephone?
A Not necessarily.
Q Okay. Now, where else did you try to find some 

fingerprints?
A That is all.
Q You didn’t try the front door?
A (Witness nodded no).
Q Were you not told that the party left by the front 

door?
A Yes.
Q And you didn’t dust the—
A No, sir. That is another surface you cannot obtain 

fingerprints from.
Q You have obtained fingerprints from doorknobs?



63

[fol.475] A No, sir.
Q You never have?
A  No, sir. I don’t know of very many that have.
Q Okay.
A Those surfaces are too rough.
Q Now, on the ground under the window at the 

Stowe’s residence there, what did you find besides that 
old tire there, tire rim or whatever that is?

A That is a tire wheel and the screen that came off 
the window.

Q Okay. Did you find anything else there, Mr. Hul­
sey?

A  Not that I recall. There was— Let’s see. There 
was possibly some more items there, but I don’t recall 
what they were.

Q Did you find a flower pot about the size of this 
drinking glass?

A Yes, there was a flower pot there, since you 
mentioned it. I forgot about that.

Q Was it standing upright, just like this?
A No, I believe it was lying on the ground.
Q You are not sure about that, though?
A No, sir.
Q That flower pot have a smooth or rough surface?
A It’s rough.

[fol. 476] Q Did you dust it for fingerprints?
A No, sir, for the same reason I didn’t dust the 

other.
Q How long is the hallway, Mr. Hulsey, in the house 

that has been referred to by the District Attorney in 
this case, approximately?

A Exactly, Jimmie, I couldn’t say. It’s probably 
twelve feet, something like that. I would say roughly 
that, ten or twelve feet. There is, I believe four doors 
into it, I believe.

Q Actually, isn’t the hallway about as long from you 
to the other end of that blackboard there? Wouldn’t 
that be about right?

A  I didn’t think it was quite that long. It could be. 
I didn’t pay that much attention to it. I didn’t measure 
it either.



64

Q Did you notice the light in the hallway?
A Yes, sir.
Q In your estimation, what was the size of that light 

bulb?
A  I didn’t look at it, but I would assume it’s either 

a sixty or seventy-five watt bulb.
Q A small one?
A Yes.
Q Did you ever see a search warrant or a warrant 

tfol. 477] of arrest for anyone on the night of May 9, 
1967?

A Saw the warrant that day, that morning after 
we—

Q I am talking about the night, from 2:45 until ap­
proximately 9:00 o’clock, we will say, on the morning of 
May 9th. Did you see a search warrant or a warrant of 
arrest?

A  No.
Q You did place Elmer Branch in custody?
A Yes, sir.
Q And you arrested him?
A Yes, sir.
Q And he resisted arrest?
A Yes.
Q And yet you went ahead and forcibly put the hand­

cuffs on him and took him to jail?
A Yes.
Q Yet you did not have a warrant of arrest?
A Had enough information I thought I didn’t need 

one.
Q Had anyone told you that night to arrest Elmer 

Branch before you received a call from Sheriff Smith?
A From the Sheriff?
Q Yes.
A No.

[fol. 478] Q Mr. Hulsey, after you left your home in 
the early hours of the morning, did you have radio con­
tact— Was the car at your home?

A Yes.
Q Did you have the car?
A I had one of them, yes, sir.



65

Q Unit what? Nine? Ten?
A Nine.
Q Did you receive any information by radio that 

night describing either the automobile that you were to 
apprehend or the individual?

A Not so far as an actual description of the automo­
bile. It was an automobile in route toward Vernon on 
that highway with a colored male in it.

Q Male or males?
A Colored male is all I had.
Q You just had male?
A Just male. Colored subject is all I had there.
Q Colored subject or subjects?
A Subject. I didn’t know how many was in the ear. 

I had no way to know.
Q You had been in the courtroom when Sheriff Smith 

testified?
A  Yes.
Q Do you remember that he testified “ stop every car 

[fol. 479] that had colored subjects?”
A  Well, I would refer to that as not necessarily not 

being more than one in a car.
Q Or if there had been ten, you would have stopped 

them anyway, wouldn’t you?
A Yes, sir, probably.
Q You didn’t see any felony committed on the night 

of May 9, 1967?
A  No, sir, I didn’t see.
Q When you arrived at the Texaco Station on the 

expressway, did you see a felony committed?
A No, sir.
Q Did you see a breach of the peace?
A No, sir.
Q All right.
MR. SOURIS: No further questions of this witness.
MR. RENFRO: That is all for the time being.

[fol. 480] MR. R. V. WOODARD, after having been 
first duly sworn, testified as follows, to-wit:



66

DIRECT EXAMINATION

BY MR. RENFRO:
Q Your name is R. V. Woodard?
MR. SOURIS: Your Honor, to expedite matters, we

will stipulate that he will testify exactly as Officer Hul­
sey did.

MR. RENFRO: That is fine and dandy.
THE COURT: That stipulation is entered into by

Defendant and counsel for Defendant?
MR. SOURIS: That is correct.
THE COURT: Does the Defendant so stipulate?
MR. SOURIS: Yes, Your Honor.
THE COURT: He will have to speak.
MR. SOURIS: We withdraw the stipulation.

[fol. 481] THE COURT: All right. I am not going
to admit the stipulation, unless it’s entered into by the 
Defendant and counsel for Defendant. Only counsel for 
Defendant has entered into the stipulation.

MR. RENFRO: I understand, but I thought he did.
MR. SOURIS: Your Honor, I feel that I can enter

the stipulation for the Defendant, but I would prefer 
the Defendant not enter into it.

THE COURT: All right. I am not going to admit
your stipulation.

Q (By Mr. Renfro) Your name is R. Y. Woodard?
A Yes, sir.
Q Deputy Sheriff of Wilbarger County, Texas?
A Yes, sir.
Q Mr. Woodard, on the morning, early hours of the 

morning of May 9, 1967, did you receive any kind of a 
call from your superior, Mr. Smith?

A  Yes, sir, I did.
Q Will you tell the jury just what transpired, what 

instructions he gave you?
A He called me around 2:45 and told me to get in 

the car, and briefly gave me what had happened, and 
told me to go west out on 287 to intersection of 925 
[fol. 482] that cuts from 183 over to 287. In the mean­
time when I got in the car and got on the radio, picked



67

up the call that they had already stopped the subject 
at the station down there.

Q And you went to the station, did you not?
A  Yes.
Q Did you meet anyone else there?
A Deputy Hulsey.
Q All right. Then what happened?
A We put the subject in the car and started north.
Q Where did you go?
A We got out just, oh, at the intersection of 925 and 

183 north, and the Sheriff advised us to stop there. He 
wanted to see us a minute.

Q Did the Sheriff then come to where you were?
A  That is right.
Q Would you state just what happened when the 

Sheriff got there?
A He talked to us there a little bit and he looked 

the subject we had in the car over, and he said just 
hold up there a minute, and then he went on out north.

Q In a few minutes did you receive any other com­
munication from the Sheriff?

A Yes, sir. He told us to turn around and take the 
[fol. 483] subject to jail.

Q What else, if  anything, did he tell you?
MR. SOURIS: Your Honor, we object to this entire

line of testimony.
THE COURT: Overruled.
Q What else, if anything, did he instruct you?
MR. SOURIS: Note our exception.
A He told us to take his shoes off and bring them 

out to the scene where the crime had taken place.
Q What if anything happened at that juncture?
A  Sir?
Q What if anything happened at that juncture?
A I didn’t understand your question, Curtis.
Q What if anything happened while you were out 

there from that time on? Did the Defendant—
A Now, that was before we brought the subject in.
Q Well, when you started back, did anything hap­

pen?
A Yes, sir.



68

Q What if anything did happen?
A  The subject said he wasn’t going to any jail and 

we wasn’t big enough to carry him, said we would have 
[fol. 484] to kill him before he would go.

Q Did anyone come to your assistance?
A  Yes, sir.
Q How did they know?
A  Called them on the radio.
Q And who came to your assistance?
A Don Gary and Ray Mitchell. Or Jimmy Mitchell, 

I believe it is.
Q Did they or not help you put the cuffs on him?
A  Yes, sir.
Q Did they accompany you into the jail?
A That is right.
Q Now, Mr. Woodard, did you on that night see the 

shoes that the Defendant here was wearing?
A Yes, sir.
Q Did you see them after they were taken off of him?
A  Yes, sir.
Q Did you or not go back out to the Stowes with the 

shoes in your custody?
A  Yes, sir.
Q State whether or not you compared out there your­

self the shoes to the tracks at the Stowes residence?
A I did.

[fol. 485] Q Did they correctly portray the markings 
in the tracks as coming from those shoes?

MR. SOURIS: Your Honor, I object to leading the
witness.

THE COURT: Overruled.
A Exactly.
MR. SOURIS: Note our exception.
Q Mr. Woodard, did you or not go inside the Stowe’s 

residence?
A Yes, sir, I did.
Q Did you or not see the telephone?
A  Yes, sir, I did.
Q State whether or not the telephone was in order 

or if anything had been done to it.



69

A  Wire that goes to the receiver was broken off or 
cut off.

Q Was the receiver back in the cradle?
A Right.
Q Mr. Woodard, are you acquainted with party line 

telephones?
A Yes, sir.

[fob 486] Q Are you acquainted with the fact that if 
you leave a telephone off on a party line—

MR. SOURIS: Your Honor, that is leading.
THE COURT: I believe you are getting into a lead­

ing question.
Q (By Mr. Renfro) Are you acquainted with the 

operation of those?
A Yes, sir.
Q State what would happen if on that party line a 

receiver is left off the hook.
A  There would be a busy signal. No one else on that 

line would be— On a party line, from four to eight on 
the party line, and I believe it would be four direct on 
that line, and if  you pick up the receiver it would be 
a busy signal and you could not call out there.

Q So what did that, if anything, indicate to you?
A Well, I don’t know just exactly what you mean by 

that.
Q Would that receiver had to have been back on the 

cradle before her son—
[fol. 487] MR. SOURIS: Oh, Your Honor, please.

Q — could have called in?
MR, SOURIS: Your Honor, that has no relevancy

and no bearing whatsoever on any issue in this case.
THE COURT: What would be the relevancy?
MR. RENFRO: I want to show that he is bound to

have been the one that put the receiver back in the 
cradle, because she went to her son’s house, who is on 
the same line.

MR. SOURIS: Approach the bench.
THE COURT: Approach the bench.

(Counsel approached the bench.)



70

Q (By Mr. Renfro) Mr. Woodard, did you observe 
anything about the kitchen or any of the windows or 
doors of the house?

A  The kitchen window. The screen was torn off of 
it, and I believe there was a flower pot there which it 
[fol. 488] looked like had just been pitched outside, and 
the window was up.

Q The window was up?
A Yes, sir.
Q And that was before daylight?
A That is right.
Q That was in the early hours of the morning?
A Y  AQ y
Q Of the 9th of May?
A  Yes.
MR. RENFRO: I believe that is all.

CROSS EXAMINATION 

BY MR. SOURIS:
Q Mr. Woodard, can you truthfully say that I didn’t 

take that screen off that window?
A Well, I wouldn’t think you would.
Q Answer my question. You couldn’t say that I didn’t 

do it, could you?
A No.
Q Mr. Woodard, this case has been awfully hard on 

[fol. 489] you because those are life-long friends out 
there?

A That is right.
Q You have had to restrain yourself pretty heavy, 

haven’t you?
A Right.
Q Just one or two questions, Mr. Woodard. Did you 

see Elmer Branch commit any felony or breach of the 
peace on the night of May 9, 1967?

A No.
Q All right. When you arrived at the Texaco sta­

tion, he was in custody of two officers, is that right?
A He was standing beside the car there when we 

drove up.



71

Q And you and Officer Hulsey then in turn took him 
in your car?

A  Right.
Q He could not have left, is that right?
A  We didn’t intend for him to.
Q Furthermore, when you told him you were going 

to take him to jail, he attempted to resist?
A Right.
Q He told you he was guilty of no crime, did he not?
A I don’t remember him saying he wasn’t guilty of 

any crime.
[fol. 490] Q Well, you are bound to have given him 
some reason for taking him to jail, wouldn’t you?

A  Well, I figured he knew what he had done is the 
reason he resisted arrest.

Q Well, Mr. Woodard, you are not trying to tell this 
jury or me that you are a mind reader?

A Well, no, I am not a mind reader.
Q As I say, you are pretty emotional on this case?
MR. SOURIS: I don’t think I have any further ques­

tions. Thank you.

MR. LEONARD WOODARD, after having been first 
duly sworn, testified as follows, to-wit:

DIRECT EXAMINATION

BY MR. RENFRO:
Q Your name is Leonard Woodard?
A Leonard Woodard.
Q Mr. Woodard, on the morning of May 9, 1967, did 

you or not go to the home of Mrs. Grady Stowe?
A I did.

[fol. 491] Q Would you state approximately what time 
it was when you went over there?

A It must have been around 3:00 o’clock, maybe a 
little after.

Q In the morning?
A Yes, sir.



72

Q Mr. Woodard, did you see any tracks around the 
Stowe house?

A  Yes, sir.
Q Did you see any comparisons being made with the 

shoes and those tracks?
A Yes, sir.
Q Of white tennis shoes?
A Yes, sir.
Q Would you know those tennis shoes, if  you should 

see them?
A I think so.
MR. SOURIS: Your Honor, we have objected to this 

entire line of testimony. May we have a running objec­
tion to this entire line of testimony?

THE COURT: What is the basis of your objection?
MR. SOURIS: The basis, Your Honor, is predicated

[fob 492] back upon the original proposition that the 
entire arrest was illegal, and any evidence adduced from 
that arrest would be inadmissible.

THE COURT: I am going to overrule your objec­
tion.

MR. SOURIS: Note our exception thereto. May I
have a bill on that later?

THE COURT: Yes, sir, you may.
Q (By Mr. Renfro) Mr. Woodard, can you iden­

tify those shoes as being the ones compared to the tracks?
A Yes, sir, that is the ones.
Q Did those shoes or not fit the tracks?
A Yes, sir, they did.
Q Was the markings perfect or obliterated or what?
A They looked real plain.
Q I believe you did testify they exactly portrayed 

the marks perfectly?
A Yes, sir.
Q Did you observe anything else around the house, 

Mr. Woodard, at that time?
A Well, the screen was pulled off the kitchen window 

on the north side of the house. It had been pulled out 
and set back.
[fol. 493] Q Did you go inside the house?

A Yes, sir.



73

Q Did you observe the telephone in there?
A Yes, sir.
Q What condition was it in?
A The cord had been pulled out of the receiver. It 

was back on the hook, but the cord was pulled out.
MR. RENFRO: I believe that is all.
THE COURT: Cross examination?
MR. SOURIS: Yes.

CROSS EXAMINATION

BY MR. SOURIS:
Q Mr. Woodard, how did you arrive at your opinion 

that the screen had been pulled off the wall?
A The hooks was— They were still hooked in the 

hooks, but the screws was pulled out of the wood. You 
could see where they were pulled out.

Q But you are not trying to tell this jury that you 
know who took it off?

A Oh, no, sir.
[fol. 494] Q Have you worked a lot of colored people? 

A Yes, sir, I have.
Q In your farming operation?
A  Yes, sir, I have.
Q Unfortunately, doesn’t that pair of tennis shoes 

look about like what most of them wear?
A. Well, yeah, I would say similar, but I don’t think 

the markings would be the same on the sole.
Q But as a whole, the worn, delapidated condition 

they are in portrays about what they usually wear?
A I would think so.
MR. SOURIS: No further questions.
MR. RENFRO: That is all.

(At this time a recess was taken.)
(After recess.)

[fol. 495] MR. DON GARY, having been previously 
sworn, testified as follows, to-wit:



74

DIRECT EXAMINATION

BY MR. RENFRO:
Q Your name is Don Gary?
A That is right.
Q What is your occupation, Mr. Gary?
A Police Department, Vernon, Texas.
THE COURT: Pardon me just a moment, Counsel.
Were you sworn earlier?
MR. DON GARY: Yes.
THE COURT: All right.
Q (By Mr. Renfro) Were you a police officer on the 

9th day of May of this year?
A That is right.
Q I believe you are on the 11:00 o’clock shift until 

morning?
A  That is right.
Q From 11:00 to 7:00 the next morning?

[fol. 496] A That is right.
Q Sometime in the early hours of the morning, Mr. 

Gary, did you receive any message from the desk to 
make any kind of investigation?

A Got a call to stop all cars coming in from the 
north with colored subjects in them.

Q Well, who if anyone was with you?
A Jimmy Mitchell.
Q What car, if any, were you in? Do you remember?
A I don’t remember. I believe it was six. I wouldn’t 

say for sure.
Q What did you and Mr. Mitchell do at that time?
A We went to the expressway and Main Street and 

attempted to stop a car. It was a white subject in the 
car. We let him go and turned around and went back, 
and just pulled up to the stopsign there on the west side 
of Main Street, headed south, and this car came from the 
north and stopped. He hesitated there just in the middle 
of the street, and then pulled into this Texaco station, 
Vic Robinson’s Texaco Station, and got some gas.

Q What if anything then did you and Mr. Mitchell 
do?



75

A We drove into the station and told the subject 
that the County Deputies wanted to talk to him, if he 
[fol. 497] would wait until they got there.

Q Well, did you later see any deputies then?
A Yes.
Q Approximately how long after that was it did you 

see them?
A It might have been five minutes. I don’t know 

for sure.
Q Which of the deputies, if any of them, came out?
A Hulsey and Woodard.
Q Did they or not at that time take the subject or 

the Defendant here away from you all?
A That is right.
Q And put him in the car?
MR. SOURIS: Your Honor, that is a leading ques­

tion. I hate to be continually objecting.
THE COURT: I don’t believe it’s disputed, is it,

Counsel?
MR. SOURIS: Thank you, Your Honor.
Q (By Mr. Renfro) Did you get any further call 

later on that night?
A Yes.

[fol. 498] Q What if anything was it?
A Well, they were calling for help. They needed some 

help out by Yal Blakes.
Q Do you know where that call came from? Who 

gave it?
A Hulsey.
Q What if anything did you and Mr. Mitchell do at 

that time?
A We went out there.
Q Would you tell the jury what happened when you 

got out there?
A Well, they had the subject in the front seat. He 

was leaning over the seat, the front seat of the car, his 
head into the back seat and his feet was in the front 
seat, and they were attempting to put the handcuffs on 
him. They had one handcuff on one hand and needed 
some help getting the handcuff on the other hand.



76

Q All right. What did you all do at that time?
A We helped them put the handcuffs on him.
Q Where if any place did you go from there?
A  Carried him to the County Jail.
Q Was the Defendant then placed in jail?
A Yes, sir.

[fol. 499] MR. RENFRO: I believe that is all.
THE COURT: Cross examination, Counsel?
MR. SOURIS: Yes, Your Honor.

CROSS EXAMINATION 

BY MR. SOURIS:
Q Mr. Gary, about 2:45 in the morning of May 9, 

1967, did you see Elmer Branch commit any felony?
A  No.
Q Did you see him commit any breach of the peace?
A  No.
Q You arrested him without a warrant, is that cor­

rect?
A That is right.
Q Placed him in your custody?
A (Witness nodded yes)
Q Strictly upon authority from the police dispatcher, 

is that correct?
A  That is right.
Q To stop every car that had colored subjects in it? 

[fol. 500] A That is right.
Q Is that right?
A That is right.
Q After you arrested Elmer Branch, how long did 

you detain him at the Texaco station before the Sheriff’s 
officers, officers of the Sheriff’s Department, came in, 
arrived there?

A It might have been five minutes, I don’t know for 
sure.

Q All right. Are you familiar with the section of 
the Code of Criminal Procedure that any person making 
an arrest without a warrant shall immediately take the 
person arrested before the nearest magistrate?

A  That is right.



77

Q You are familiar with it?
A (Witness nodded yes)
Q And yet you did not do that, did you?
A  No, sir.
Q Mr. Gary, do you feel that a man that feels he 

has been illegally arrested has the right to resist?
MR. RENFRO: I don’t think that is a proper ques­

tion.
[fol. 501] MR. SOURIS: Your Honor, the testimony
has been—

THE COURT: Are you making an objection, Coun­
sel?

MR. RENFRO: Yes.
THE COURT: What is your objection?
MR. RENFRO: It’s an improper question of what

he feels like nr what he thinks.
THE COURT: Sustain your objection.
Q (By Mr. Souris) Did you hear the Defendant say 

anything at the time you assisted in handcuffing him?
A Only cussed us.
Q He didn’t cuss you at the station?
A  No.
Q He didn’t give you any trouble whatsoever?
A No trouble at all.
Q But he couldn’t have left, could he? You had him 

detained?
A No.
Q If he had have left, you would have used all rea­

sonable force to have stopped him?
[fol. 502] A Yes.

MR. SOURIS: No further questions.

RE-DIRECT EXAMINATION 

BY MR. RENFRO:
Q Did you observe the Defendant’s clothes and shoes 

when you all stopped him at the filling station?
A  Yes, sir.
Q What condition was his clothes in, his pants?
A His pants were unzipped.



78

Q What kind of shoes, if any, did he have on? 
A  Had on tennis shoes, white tennis shoes. 
MR. RENFRO: That is all.

RE-CROSS EXAMINATION 

BY MR. SOURIS:
Q Mr. Gary, have you arrested everybody you have 

seen with their pants unzipped?
[fol. 503] A No.

MR. SOURIS: No further questions.

MR. LORAN A. SMITH, recalled by the State, took 
the stand and testified further, to-wit:

RE-DIRECT EXAMINATION 

BY MR. RENFRO:
Q Mr. Smith, the testimony shows that you called 

back to Mr. Woodard and Mr. Hulsey to take the Defend­
ant to jail and bring his shoes. Had you been given a 
description of the Defendant at that time?

MR. SOURIS: Your Honor, he is testifying.
A Yes.
MR. SOURIS: I object to that.

[fol. 504] Q Who if anyone gave you that description?
THE COURT: Overrule your objection. Go ahead

and answer the question.
MR. SOURIS: Note our exception thereto.
A I stopped at Punk Stowe’s house and Mrs. Stowe 

was there, and she described the clothing and the shoes 
that the Negro that raped her had on. I didn’t tell her 
that we had him stopped at that time, but after she gave 
me the description of what he was wearing, and I had 
already seen before I went out there, then I went up to 
her house and looked at the shoe tracks, then knowing 
them in my own mind I thought we had the right Negro, 
and that is when I called in.

Q That is when you called?
A The car that had him in their car, yes.
MR. RENFRO: That is all.



79

[fol. 505] RE-CROSS EXAMINATION 

BY MR. SOURIS:
Q Mr. Smith, do you know the mandates of the Code 

of Criminal Procedure that any man arrested without a 
warrant will be immediately taken before a magistrate?

A That is right.
Q You did not take Elmer Branch before a magis­

trate until 9:00 or 10:00 o’clock the next morning?
A We didn’t right then, no.
MR. SOURIS: No further questions.
MR. RENFRO: That is all.
If the Court please, I think we need to approach the 

bench out of the presence of the jury.
(Counsel approached the bench.)

THE COURT: Gentlemen of the Jury, we are going
to stand aside until 1:15. Bear in mind the Court’s in­
structions heretofore given you not to discuss the case 
among yourselves or with anyone else, nor are you to 
[fol. 506] permit anyone to discuss the case with you. 
You are not to listen to any report on the radio or tele­
vision or read any account that there might be in the 
newspaper concerning this case.

When you return at 1:15, reassemble in the jury room 
where you assembled this morning.

Thank you very much. See you at 1:15.
(Reporter’s note: The following proceedings were 
had outside the Jury’s presence:)

THE COURT: All right. Now, have you got any pre­
liminary matters to take up out of the jury’s presence?

MR. RENFRO: The State at this juncture rests.
MR. SOURIS: Your Honor, we would like to make a

Motion for Instructed Verdict, please.
Now comes the Defendant, Elmer Branch—
THE COURT: Now, let me suggest this, Counsel.

After the jury comes back in, maybe you better an­
nounce that you rest in their presence, Counsel, but for 
the purpose of this Motion, let the record reflect that he



80

[fol. 507] has already rested, so we won’t have to get the 
jury back out again.

MR. SOURIS: Now conies the Defendant, Elmer
Branch, and makes this his Motion for Instructed Verdict 
based upon the following facts: First, that the State has 
not proved beyond a reasonable doubt that the Defendant 
is the party that committed the alleged crime for which 
he has been tried; second, that the State has failed to 
sustain its burden, and that the evidence adduced at this 
point has been insufficient. Furthermore, the Defendant 
would ask leave of this Court to file additional basis for 
the Instructed Verdict at such time as the State closes.

THE COURT: Motion for Instructed Verdict is over­
ruled.

MR. SOURIS: Note our exception thereto.
(At this time a recess was taken.)
(At 1:15 the Jury returned to the courtroom and 
the following proceedings occurred in its presence:)

THE COURT: All right, gentlemen, if you are ready 
[fol. 508] to proceed.

MR. RENFRO: The State rests.
*  *  *  *

THE COURT: This is your first witness, Mr. Souris?
MR. SOURIS: Yes, Your Honor.

MR. EDWARD SNELLER, after having been first duly 
sworn, testified as follows, to-wit:

DIRECT EXAMINATION 

BY MR. SOURIS:
Q Will you state your full name for the Court and 

jury, please, sir?
A  Edward Sneller.
Q Where do you live, Mr. Sneller?
A Wichita Falls, Texas.
Q All right, sir. What is your occupation, sir?
A I am a parole officer for the State of Texas.
Q Do you have a particular area that is assigned to 

you or that you work?



81

A  I do,
[fol. 509] Q What is that area, please, sir?

A  It consists of ten counties of which Wilbarger is 
one.

Q Wilbarger is one?
A  Yes.
Q Mr. Sneller, do you know the Defendant in this 

case, Elmer Branch?
A  I do.
Q Have you had the occasion to handle him, so to 

speak, in your official capacity?
A  Yes, sir.
Q You have been his parole officer, is that correct?
A That is right.
Q Do you remember when he was first given to you 

or assigned to you?
A He was paroled on the 30th of March of this year.
Q Have you had the occasion to personally visit with 

Elmer Branch?
A Yes, sir, I visited with him the day after he was 

paroled at his home, and subsequent to that, approxi­
mately two weeks later I again visited Elmer Branch at 
his home, and then I again visited with him in the Wil­
barger County Jail.

Q Do you remember when that visit was in the County 
Jail?
[fol. 510] A I believe it was on the 17th of May.

Q Mr. Sneller, in the course of your work, are you 
given certain reports by the various governmental agen­
cies that handle prisoners or parolees?

A  Yes, sir.
Q Is one of them an admission report?
A Yes, sir, an admission summary.
Q Do you have an admission summary in your pos­

session that was sent to you by the Texas Department of 
Corrections?

A Yes, sir.
Q Do you also have a parole summary, or do you get 

a summary from the State Parole Board?
A Yes, sir.
Q Is that called a parole summary?



82

A Yes, sir, there is a parole summary, a parole place­
ment request and another document which is known as 
the parole summary.

Q All right. Parole placement, parole summary, and 
what is the other?

A The parole placement request and the parole sum­
mary.

Q The two items. The parole summary, which you 
have in your possession, by whom is that signed?

A It’s signed by Mr. Williford, the Supervisor, but 
[fol. 511] it was prepared by Ira Hensley, the Institu­
tional Parole Officer.

Q May I have the parole summary, please, sir? 
(Handed to Mr. Souris.)

Q Mr. Sneller, you are an employee of the State of 
Texas?

A I am.
Q And you are here in answer to a summon issued 

by me in behalf of the Defendant in this case?
A I am.
Q You were also summoned to bring these reports 

with you?
A That is right.
Q They have been in your official custody since you 

received them from the State Agency?
A  That is right.
Q They are not available to anyone except by this 

procedure?
A That is right.
Q You are paid to come here by the State of Texas if 

you get any additional pay, is that correct?
A Yes, sir.
Q You do not except any pay from the Defendant in 

[fol. 512] this case?
A No, sir.
MR. SOURIS: We would like to offer the parole sum­

mary into evidence, Your Honor, as Defendant’s Exhibit
1.

(The exhibit marked for identification as Defend­
ant’s Exhibit No. 1 (DX-1) appears in this record at 
the page shown in the index of exhibits.)



83

Q (By Mr. Souris) Mr. Sneller, in order to qualify 
for your job as a parole supervisor, do you have to pos­
sess certain educational qualifications?

A  Yes, sir.
Q And what are those, please, sir?
A  The law states that a person needs to be a gradu­

ate of an accredited college or to have two years of col­
lege with the equivalent being in experience, the other 
two years.

Q Have you had training in the field of sociology?
A Yes, sir.
Q Are you a Sociologist?
A  No, sir.
Q Are you a Psychologist?

[fob 513] A My major field of study in college was 
psychology.

Q Could you give us any estimate of about how many 
parolees you have handled in your tenure in office?

A Possibly between eight and nine hundred.
Q All right. Have you been able to form any opinion 

from your visits, association with the various parolees as 
to their mental capacities?

A I think that everyone is inclined to judge the men­
tal capabilities of those persons with whom they come in 
contact.

Q Have you seen and talked with Elmer Branch 
enough to form an opinion as to his mental capabilities?

A The opinion that I have of his mental capabilities 
is not in variance with the indicated or the tested record 
of his intelligence as furnished me in the material you 
have there.

Q All right, sir, I will read to you from the parole 
report. “ Psychological: Appears of dull intelligence and 
institutional testing would tend to verify this. Seems to 
express himself and get along with others on a level about 
equal with people considered of dull intelligence, while his 
plans for their future seem realistic only to the extent he 
[fol. 514] can project them and with his attitude toward 
acceptance of parole conditions seeming good only insofar 
as he understands them.”  Then would you go along with



84

the State’s evaluation, psychological evaluation of this 
Defendant?

A  Yes, sir.
Q That he is of dull intelligence?
A  Yes, sir.
Q Now, do you have with you other reports, the ad­

mission summary?
(Handed to Mr. Souris.)

Q For the benefit of the jury, Mr. Sneller, could you 
tell them how this admission report is prepared, if you 
know?

A To my knowledge, it is prepared at the time the 
man initially arrives at the Texas Department of Correc­
tions. It is compiled from information which is obtained 
from the inmate by personal interview, and also, I believe, 
that certain information is verified by certain records, 
documents and letters.

Q They are given tests? I.Q. tests?
A It is my understanding they are, yes, sir.

[fob 515] Q Is this the only summary that you have?
A I have a record of his test scores which is separate 

from that.
Q May I see that, please, sir?

(Handed to Mr. Souris.)
Q Mr. Sneller, I can’t find the name of the party that 

prepared the admission summary.
A I don’t believe that that is signed, sir. This is a 

combined effort at the institution.
Q I see.
MR. SOURIS: Your Honor, I believe that is all I 

have of this witness at this time. I would like for him 
to be available for recall.

CROSS EXAMINATION 

BY MR. RENFRO:
Q Mr. Sneller, at this time the parole has been re­

voked upon this Defendant, has it not?



85

A  Yes, sir, it has,
[fol. 516] Q Upon a charge of three years for theft 
from a person of Wilbarger County, Texas?

A  Yes, sir.
Q I believe that was in 1965, is that correct?
A  I believe that is correct, sir.
MR. RENFRO: No further questions.

MR. IRA B. HENSLEY, after having been first duly 
sworn, testified as follows, to-wit:

DIRECT EXAMINATION 

BY MR. SOURIS:
Q Will you state your full name for the Court and 

jury, please, sir?
A  Ira B. Hensley.
Q Where do you live, Mr. Hensley?
A  In Houston.
Q And where are you employed?
A I am employed as an institutional parole officer 

by the Division of Parole Supervision. Our office is in 
[fol. 517] Richmond. I am assigned certain units for the 
compilation of parole reports for parole consideration.

Q Mr. Hensley, are there certain educational require­
ments you must possess before you can maintain that 
position?

A Yes, sir. They are the same as for the District 
Parole Officer, actually.

Q And are you a graduate of a university or college?
A  Yes, sir, I have a Bachelor Degree from the Univer­

sity of Houston.
Q In what field?
A Sociology.
Q All right. That field of sociology deals with what?
A As I understand it, sociology deals with the fac­

tors going into— leading to the behavior of individuals.
Q Mr. Hensley, you are here because of a subpoena?
A I am.
Q You were asked to bring, if you had any, records 

pertaining to the Defendant in this case, Elmer Branch, 
is that not correct?



86

A I was so ordered.
Q And you don’t expect to receive any pay from the 

[fol. 518] Defendant in this case, having been subpoe­
naed?

A No, sir.
Q Being a State employee?
A That is correct.
Q Is there a normal or accepted procedure whereby 

inmates are interviewed or processed before granted 
parole from the Texas Department of Corrections?

A Yes, sir.
Q Is that the division that you are in?
A That is correct.
Q All right. Do you remember having prepared the 

parole summary for Elmer Branch?
A Actually, the name Elmer Branch rings a bell, but 

the actual preparation of the summary, I couldn’t testify 
definitely.

Q If I show you a parole summary and ask you to 
examine that, please, sir.

A I believe this to be my report.
Q All right. Mr. Hensley, let me ask you if the in­

formation contained therein was derived through investi­
gation by yourself or by subordinates, or both?

A I would say not subordinates. I would say asso­
ciates.

Q Excuse me. Associates.
[fol. 519] A In as much as other documents were avail­
able to me, of which you have a sample there—

Q Are you referring to the admission summary?
A That is correct.
Q Which is prepared by the Texas Department of 

Corrections?
A Yes, sir.
Q Mr. Hensley, can you tell from that report what 

the I.Q. level or intelligence quotient is for Elmer Branch?
A The psychological section of the report does not 

give an I.Q. level as such.
Q Would the admission summary show that?
A Yes, sir, if you look in the education section.



87

Q Would you examine the education portion and see 
if you can give us the figure shown for Elmer Branch?

A This says his intelligence quotient is 67, according 
to the Gray-Votaw-Rogers General Achievement Test and 
the Otis-Form A  Test.

Q Are you familiar with both of those tests, or those 
three tests, Mr. Hensley?

A Not too familiar.
Q Have you ever administered those tests, or any of 

them?
[fol. 520] A  No, sir.

Q They are administered in the Department of Cor­
rections by a qualified and competent person, is that cor­
rect?

A Yes, sir.
Q All right. The figure 67, would you consider that 

high, low, average or what on the scale of human intelli­
gence?

A  I would consider it low.
Q All right. I will ask you if you would consider it 

even mentally deficient?
A Borderline, if I may use that term.
Q Mr. Hensley, I will ask you to examine the admis­

sion summary, please, sir, and tell me whether or not 
there is a grade level for the Defendant?

A This summary shows an educational achievement 
of 5.5. This is as of the time of his admission to the 
institution.

Q What is that date, please, sir?
A February 25, 1966.
Q All right, sir. 1966?
A Yes, sir.
Q For the benefit of myself and the jury, could you 

tell me a little bit about that grade level of 5.5? Explain 
[fol. 521] just exactly what that means, and if you can, 
how it was arrived at.

A Periodically, tests are given to determine educa­
tional achievement, and the grading on this test is meas­
ured against achievement on the part of people who have 
completed various periods of schooling. This would indi­



88

cate a completion or achievement equal to someone who 
completed five and a half years of schooling.

Q Five and a half years. Actually, Mr. Hensley, is 
there any information in that report as to what grade 
Elmer Branch did complete in school? Would you try and 
locate that for us, please, sir? I hate to put you to the 
trouble, but I am not familiar with those reports, and I 
am sure you could find them a lot quicker than I could.

A He reported completion of the Eighth Grade in the 
Booker T. Washington Elementary School in Vernon, 
Texas, which he attended from 1955 until 1960. This was 
not verified.

Q Which was not verified. All right, sir. As a prac­
ticing Psychologist, would you have an opinion, based 
upon the information that you have compiled there and 
what you have re-examined today, would you have an 
opinion as the the mental ability of this individual, the 
[fol. 522] Defendant in this case, Elmer Branch?

A I would describe it as limited.
Q With the I.Q. of 67, the grade level of 5.5, would 

you feel that this type of individual could cope with so­
ciety as a whole at this time?

A Under appropriate direction.
Q May I ask you to explain that a little further by 

way of clarifying it for me?
A A situation in which stresses and demands are not 

particularly great would be such in which a person of 
that intelligence level could adjust adequately, with the 
higher level decisions made for him by a competent person.

Q Then you feel that a person of that intelligence 
level should be constantly supervised practically?

A Not necessarily constantly supervised as much as 
constantly assisted.

Q Do you feel that constant assistance, help from any 
source would be beneficial, is that correct?

A Would you rephrase that question?
Q Help from any source would be beneficial to any 

person of that grade level and intelligence level?
A I would say so, yes, sir.
Q About how many applications for a parole are re-



89

[fol. 523] ceived in your office, we’ll say? How are they 
received? Periodically, monthly, or how?

A As I understand, the requests for reports periodic­
ally are received for a report on an inmate’s adjustment, 
after he has completed a sufficient portion of his sentence 
to be eligible for parole consideration. At that time, de­
pending on how many there happen to be, a request for 
a report is made and a report is compiled.

Q I see. Do you receive quite a few requests or are 
there quite a few inmates making application with your 
office?

A Actually, sir, the inmate does not make the applica­
tion, as such. The Parole Board requests the report.

Q All right. Does the individual appear before the 
Parole Board before parole is granted?

A  No, sir.
Q Then it is strictly—  The parole is granted, then, 

strictly upon the basis of a parole report, is that correct, 
a parole summary?

A Upon information in the Board’s possession added 
to the reports submitted by the parole officer.

Q Mr. Hensley, would you glance at the summary 
again, and tell this jury something of Elmer Branch’s 
[fol. 524] family history, background there that you feel 
would be of benefit to them?

A If I may be allowed to read my report concerning 
his family history. We use the letter “ S”  to stand for the 
subject in question.

“ Subject is a twenty year old Negro male who was 
born in Vernon, of an illicit relationship between his 
natural parents, claiming one old and ten half-siblings 
by his mother’s other relationships. Subject claims his 
half-brother, Robert Sanders, has spent six months in 
SJTS for an unknown offense, claiming no other delin­
quency in his half-sibling group than his own. Subject 
reports separation of his natural parents when subject 
was about four years of age, indicating no contact with 
his father, and saying ‘I woudn’t know him if I saw him.’ 
Subject claims ceremonious marriage of his mother when 
he was about six years of age. Subject says his step­
father was always a farmer, while his mother was al­



90

ways a housewife. Subject says he feels closest to and 
feels himself most influenced by his mother’s teachings, 
indicating his present situation does not reflect conform­
ity to her example. Subject says he was raised by his 
mother and his maternal grandmother, receiving support 
[fol. 525] from his stepfather’s earnings as well as his 
mother’s sometime work in the field. Subject claims child 
care was supplied by his grandmother, indicating de­
parture from the family environment at age of fourteen 
in order to go to SJTS, returning home thereafter until 
about age seventeen. Subject claims at this time he moved 
out of the house to go to work and live with a female 
acquaintance. Residence immediately prior to the instant 
offense is explained by subject as having been with his 
mother for about one year. Subject claims life time Texas 
residence except for several months residence in Okla­
homa in 1965, saying ‘I went there to visit with my girl­
friend.’ Subject claims a compatible relationship with all 
family members.”

MR. SOURIS: No further questions.
THE COURT: Cross examination?

[fol. 526]
CROSS EXAMINATION 

BY MR. RENFRO:
Q Mr. Hensley, it isn’t your purpose in testimony to 

tell this jury that this Defendant didn’t know the differ­
ence between right and wrong?

A No, sir.
Q Having completed the Eighth Grade in school. For 

my life, I can’t see the purpose of the testimony.
MR. SOURIS: Your Honor, Mr. Renfro certainly is

not conducting—
THE COURT: If you have an objection to make, 

Counsel, make it and the Court will rule on it.
MR. RENFRO: I don’t have an objection, and I am

not asking any more questions.
THE COURT: All right.
MR. SOURIS: I ask the witness be excused, subject

fn 11
THE COURT: All right.



91

[fol.527] MR. JAMES W. WOOTEN, after having 
been first duly sworn, testified as follows, to-wit:

DIRECT EXAMINATION 

BY MR. SOURIS:
Q Will you state your full name for the Court and 

jury, please, sir?
A James W. Wooten.
Q Where do you live, Mr. Wooten?
A Huntsville.
Q Where are you employed?
A Texas Department of Corrections.
Q How long have you been with them, sir?
A Since June of 1958.
Q All right. Mr. Wooten, in your employment, do 

you prepare admission summaries for new prisoners com­
ing into the penitentiary system?

A I did.
Q I will show you an admission summary prepared 

for Elmer Branch, and ask you if that was prepared 
either under your direction or if you are aware of the 
contents therein?

A I would like to say this, that a part of it I pre- 
[fol. 528] pared. The balance of it is an accumulation 
of information from other departments in the Depart­
ment of Corrections, part of it is.

Q That is the formal and standard procedure, though, 
followed by the system, is that correct?

A Correct.
Q Mr. Wooten, I have never been down to Hunts­

ville, and I don’t know whether the members of the jury 
have or not. Would you explain, if you would, please, 
how an inmate is treated when he first gets there, and 
say possibly through your report there. I hate to burden 
you, but I feel it would be important in this case.

A Well, when an inmate is received, he now is as­
signed to the diagnostic center for approximately three 
weeks prior to being assigned to his farm unit. During 
this period of time he is interviewed by the Sociologist, 
given I.Q. tests, E.A. tests; he is given a medical examina­



92

tion, something similar to a military reception center 
processing. After he has completed all this, he is then 
assigned with the qualification committee to a unit.

Q About how long a period of times does that take?
It ranges from two weeks to four weeks. Approxi- 

[fol. 529] mately three weeks would be average, I would 
say.

Q The purpose for that is what? The basic purpose 
of that.

A In order to assign a man to the unit where he could 
best serve his time.

Q Now, if you will examine the report there, Mr. 
Wooten, do you find the results of an I.Q. test or intelli­
gence quotient test?

A Yes, sir.
Q And what is that figure?
A Subject’s E.A. is 5.5, and his I.Q. is 67, according 

to Gray-Votaw-Rogers Achievement Test and Otis-Form 
A Test,

Q Are you familiar with those tests?
A Not directly.
Q Are they used constantly there in the system?
A Well, we use a test in sometimes assigning a man 

to the unit. We would like to know what his educational 
achievement is to assign him to the job he can properly 
do.

Q Now, your educational achievement there was 
what?

A 5.5.
Q And in your opinion, from having prepared—  

Have you prepared numerous reports of that type?
A Yes.

[fol. 530] Q And from your experience, having pre­
pared those reports, what would you say the condition 
of a person be that has that 5.5?

A Well, it’s slightly below the normal for the prison 
population.

Q Where would it be on a scale for the average per­
son of ninteen years of age, which is what he was at 
the time he was there?

A It would be below that.



93

Q Would you even put it as far down as mentally 
deficient?

A Well, I am not qualified to say.
Q Does the report in anyway place it in the scale? 

Where does the report place it, or does it?
A It doesn’t.
Q Now, who does the evaluation, then, based upon 

that report? Do you do that in placement?
A With the committee, the classification committee.
Q You are one of the members?
A Yes.
Q What type of work, then, would you place an in­

dividual in that has that mental age?
A We assigned him to farm work.
Q Farm work. Feeling that that would be the best 

place for him?
[fol. 531] A Yes.

Q Now, how about your I.Q. level? I believe you say 
that was 67 there?

A Right.
Q Where would that fall in the average, the scale of 

average people?
A  It would be below normal.
Q Below the normal. Normal would be what?
A Well, for the prison population, the average, it 

averages approximately 80.
Q And even for the prison population it was quite 

low?
A It was below normal.
Q Do you have them as low as 25?
A I don’ t remember seeing any that low. If it was 

that low, usually they are not capable of testing.
Q Do you remember about what figure your tests 

usually run?
A I beg your pardon?
Q What is the lowest figure that your tests have 

shown?
A I couldn’t tell you.
Q I notice one of your sheets there say “ No results” . 

What does that sheet mean? I am sorry. It’s on the



94

[fol. 532] parole summary. Are you familiar at all with 
these parole summaries?

A I know something about them. I am not familiar 
with the test, but the best of my knowledge, this indi­
cates what specific fields that the man might have an 
aptitude for, and it didn’t indicate anything.

Q Mr. Wooten, you are here because you were sum­
moned?

A  Yes, sir.
Q And you do not expect to be paid anything for 

your services by the Defendant?
A No, sir.
Q You are a State employee?
A Yes.
MR. SOURIS: No further questions at this time.

CROSS EXAMINATION 

BY MR. RENFRO:
Q Mr. Wooten, I believe the Board of Corrections or 

the Board of Pardons and Paroles paroled this Defend- 
[fol. 533] ant here sometime in March of this year. Have 
you got the date of that?

A He was released on parole on March 30, 1967.
Q Now, Mr. Wooten, does the Board of Pardons and 

Paroles, when they give a parole, consider the subject 
is qualified to go back to society, to normal life?

A I don’t know, sir. I assume that they parole them 
with the hopes they can make adjustments of life. I am 
not a member of the Parole Board, and I don’t know, 
sir.

Q You don’t know, then, whether there is any effort 
made to ascertain from all the prisoners before they are 
paroled whether or not they are due to be turned loose 
back on society to make the normal way with normal 
people?

A Well, the prison recommends an inmate for parole 
on the basis of his adjustment in prison, if he has. In 
other words, if he hasn’t caused any undue trouble to 
the prison system, then we recommend him to the Parole



95

Board for parole. It’s then their decision as to who they 
will parole and who they will not parole.

Q There is no intimation in your testimony in this 
case, is there, Mr. Wooten, that this Defendant here 
[fol. 534] didn’t know the difference between right and 
wrong?

A Well, I haven’t said that, no, sir. I don’t know.
Q, I say, that isn’t your thought as a member of the 

Corrections, the Board of Corrections.
A Well, in my personal opinion, sir, I just don’t 

know.
MR. RENFRO: That is all.
MR. SOURIS: No further questions.

MR. EDWARD SNELLER, having been recalled, tes­
tified further, to-wit:

RE-DIRECT EXAMINATION 

BY MR. SOURIS:
Q Mr. Sneller, did you have an occasion to investi­

gate the home life and environment of Elmer Branch 
when he was assigned to you?

A Yes, sir.
[fol. 535] Q Would you tell the jury what you found 
in that regard?

A Well, I found that he was living with his grand­
mother, Mrs. Pratt, and the home seemed to be adequate, 
possibly on par with other parolees’ homes I have super­
vised.

Q Would you read to the jury the offense there for 
which he was confined to the penitentiary?

A “ He was sentenced to a three year term on Febru­
ary 3, 1966, from Wilbarger County for theft from per­
son. Wilbarger County DA reports ‘On or about the 27th 
day of February, 1965, a purse was taken from a person 
leaving the Tuxedo Cafe.’ Subject reports this offense 
was committed in the company of his cousin, Raymond 
A. Tubbs, professing this offense occurred in Vernon, 
Texas, with the probated sentence received therefore be­



96

ing revoked due to his leaving the county without per­
mission and issuing a worthless cheek.”

Q And did you visit the Defendant, your parolee, in 
the County Jail here?

A I did.
Q Did he deny the charges against him?
A He did.
Q All right. Has his parole been revoked?

[fol. 536] A It has.
Q And what basis was used to revoke it?
A I can’t say. It was revoked by the Parole Board.
Q By the Parole Board. I see.
MR. SOURIS: I believe that is all the questions I 

have.
MR. RENFRO: No questions.

MRS. HELEN SMITH, after having been first duly 
sworn, testified as follows, to-wit:

DIRECT EXAMINATION 

BY MR. SOURIS:
Q Will you state your full name for the Court and 

jury, please?
A Helen Smith.
Q Helen, you are going to have to talk up, because 

the jury will have to hear you. Will you speak just a 
little louder, please.

Where do you live, Helen?
A 704 Bacon.

[fol. 537] Q And are you related to Elmer Branch, 
the Defendant in this case?

A He is my son.
Q He is your son. Has he been living with you for 

the past two or three months?
A My mother.
Q What is her name?
A May Anna Pratt.
Q Where did you live before you moved to Vernon?
A Out at Mr. Obenhaus’s.



97

Q Where is that?
A Out by Lockett is Mr. Obenhaus’s.
Q And you lived there how many years? Do you 

know?
A Oh, seven or eight years.
Q Was that where the Defendant was born?
A No, sir, he wasn’t born there.
Q Where was Elmer born?
A Right here in Vernon.
Q How old is he?
A He is twenty.
Q Twenty years old. Did he attend school?
A  Yes,
Q Where?
A Vernon.
Q In Vernon. How did he do in school?

[fol. 538] A He was just slow a little bit,
Q Do you know what grade he completed in school?
A Eighth Grade.
Q Do you know if he passed or failed the Eighth 

Grade?
A He passed the Eighth Grade.
Q What did he do after the Eighth Grade?
A He didn’t go to school any more.
Q Pardon?
A He wasn’t in school any more.
Q Did he live with you?
A  Yeah, during that time he did.
Q After he left school, did he live with you?
A With my mother.
Q Now, you heard the parole officers testify that he 

had been in trouble for theft, is that correct?
A  Yes.
Q Did he ever give you any trouble of any serious 

nature while he was living with you?
A No.
Q Now, you have some other children?
A Yes, sure do.
Q How many all told?
A  Twelve.



98

Q Do you have some older than he is?
[fol. 539] A One.

Q One. How would you describe Elmer’ s mentality? 
A I wouldn’t know.
Q Would say slow, average?
A  Yeah, he was always slow.
Q Could he learn in school?
A Some years, and some he didn’t.
MR. SOURIS: Pass the witness.
MR. RENFRO: No questions.
MR. SOURIS: No further questions.

MRS. MAY ANNA PRATT, after having been first 
duly sworn, testified as follows, to-wit:

DIRECT EXAMINATION

BY MR. SOURIS:
Q Will you state your full name for the record and 

for the jury, please?
A May Anna Pratt,
Q May Pratt?

[fol. 540] A Mrs. Pratt.
Q Are you related to the Defendant, Elmer Branch? 
A I am.
Q And what is that relationship?
A Grandmother.
Q All right, you are his grandmother. Until recent­

ly, has he been living with you?
A Well, a long he did, sometimes.
Q You have taken care of Elmer most of his life, is 

that correct?
A Uh-huh, I have.
Q Did he attend school while he was living with you? 
A Well, part time.
Q How did he do in school?
A Well, he didn’t do too good. He was always slow. 
Q How would you describe Elmer, mentally?
A I beg your pardon?
Q How would you describe him mentally?



99

A Well, didn’t ever seem like he was real bright or 
something. I could tell he didn’t understand.

Q You know that he has been in the penitentiary?
A Oh, yes.
Q Do you remember what that was for?
A Well, no, I really don’t, the last time.

[fol. 541] Q Did he steal a purse from some woman?
A  Yeah. Yeah.
Q So far as you know, has he ever been in any trouble 

with any women at all?
A Well, no. No.
Q Of your own knowledge, did he go with girls?
A Yes.
MR. SOURIS: No further questions.
MR. RENFRO: No questions.

(At this time a recess was taken.)
(After recess.)

MR. L. W. WILEY, after having been first duly sworn, 
testified as follows, to-wit:

DIRECT EXAMINATION

BY MR. SOURIS:
Q Will you state your name for the benefit of the 

record and the jury, please, sir?
[fol. 542] A I am L. W. Wiley.

Q Where do you live, Mr. Wiley?
A I live at 2230 Dawson Street, Vernon, Texas.
Q Do you follow some profession?
A I am a school teacher.
Q All right. Have you been a principal?
A I was principal for Booker T. Washington for six­

teen years.
Q Do you know the Defendant, Elmer Branch?
A Yes, I know Elmer Branch.
Q Was he one of your students?
A Yes, he was.
Q Do you remember his school work?



100

A Yes, sir, I remember his school work.
Q Would you tell the jury the best of your recollec­

tion as to how he performed his school work, his conduct 
and so forth?

A Well, Elmer attended school and at the time he 
was enrolled he came from the Lockett District, was 
transferred in from the Lockett School District, and his 
attendance wasn’t always real regular. He attended 
school, but sometime he had to be out some, and then 
naturally that made him a slow student. His work was 
passing at times, but he was slow, I believe, because of 
[fob 543] the attendance, and he attended school there 
for several years, and while he was there, the only prob­
lem we had was in him attending. He never gave us 
any problem otherwise.

Q Did you have occasion to examine his grades and 
talk with his teachers?

A Oh, yes.
Q Did you form any opinion or do you have an opin­

ion at this time as to his mentality level, as to whether 
it’s good, bad, slow, medium?

A  He was a slow student. That was our findings 
from test results.

Q He was just a slow learner?
A That is right.
Q Was he at the top, medium, bottom level of his 

class?
A He was in the lower four percentile of the class.
Q You are here in answer to subpoena? I subpoenaed 

you up here?
A  Yes, sir.
Q I asked you to bring his records, but they are locked 

up in the school and you couldn’t get them?
A That is right.

[fol. 544] MR. SOURIS: Pass the witness.
MR. RENFRO: No questions.
MR. SOURIS: Defense rests, Your Honor.
MR. RENFRO: The State rests.
THE COURT: You both rest and close, gentlemen?
MR. SOURIS: Defense rests and closes.
MR. RENFRO: Right.



101

THE COURT: All right.
Gentlemen of the Jury, we have reached this stage in 

the trial of this case: All the testimony is in. The next 
phase is the preparation of the Court’s Charge. That is 
done without your presence. I anticipate we can probably 
conclude that this afternoon or possibly early tonight, and 
then in the morning I am going to ask you to come back at 
9:00 o’clock. Once the Charge is read to you, then your 
communication with the outside world comes to an end, 
so to speak, until the trial is over. You will not be per­
mitted to separate, to make any telephone calls or have 
any outside communication. You will have to stay to­
gether from then on until such time as a verdict is 
[fol. 545] reached. I would remind you again that you 
must not discuss the case among yourselves or with any­
one else, nor permit anyone to discuss it with you. You 
are not to read any account that there might be of this 
trial in the newspaper, nor listen to any account that 
there might be on radio or TV.

We will see you in the morning at 9:00 o’clock, at 
which time you will please reassemble in the jury room.

Thank you very much, gentlemen. We will see you in 
the morning.

(At this juncture the Jury retired from the court­
room for the day.)
(The Charge of the Court was prepared, after which 
the following exceptions thereto were made by the 
Defendant:)

MR. SOURIS: Now comes the Defendant and makes
the following exceptions to the Court’s Charge, and asks 
this Honorable Court to consider and rule upon the fol­
lowing exceptions:

First, the Defendant objects and excepts to the Charge 
[fol. 546] in its entirety, because, first, the State has 
not sustained the burden placed upon it to prove beyond 
a reasonable doubt all of the allegations and requirements 
necessary by law in the statutes of the State of Texas, 
and that such proof falls of its own because of its in­
sufficiency.



102

Defendant would especially except to Paragraph 2 of 
the Charge wherein the Charge defines “ force” , and, in 
such definition, “ the alleged injured female” is alluded 
to as part of the definition; said definition being objec­
tionable because there has been no proof presented by the 
State that the injured party was a female.

Secondly, the testimony, if any, regarding penetration 
of the sexual organs of the femal is incomplete, inade­
quate and inconclusive, of which special exception the de­
fendant asks this Court to consider and rule upon.

Paragraph 3 is specifically excepted to, because it is 
an attempt by the Court to prescribe a penalty for the 
offense of rape, and is not in conformity with the statute 
as set out in the Texas Code of Criminal Procedure and 
the Penal Code in that it is a shortened or concise or 
abbreviated definition of rape, and does not completely, 
[fol. 547] adequately and sufficiently inform this jury of 
the intendment, scope and peripheral area which the 
penalty is to encompass, or that said definition, as used 
in this Charge, places emphasis upon the death penalty 
for rape per se, and does not in any way give the jury 
any room or area or basis upon which they may weigh 
and evaluate rape as committed upon different individ­
uals, the amount of force, brutality, atrocity not being 
considered or even presented to this jury by this Charge.

Defendant especially excepts to Paragraph 4 of the 
Court’s Charge wherein it is stated “ then and there by 
force violently ravish and have carnal knowledge of Mrs. 
Grady Stowe, a woman,”  which instruction is not sub­
stantiated by the evidence in this case, nor by the indict­
ment, as presented by the grand jury, in that neither 
the proof that a M-r-s. Grady Stowe was a woman, nor 
did the indictment allege, as is required by statute and by 
the case laws of this State to specifically allege and aver 
that the injured party was a woman.

The Court’s Charge herein presents to this jury ad­
ditional facts and/or evidence which has not been pre­
sented, as required by law, and amounts to a comment by 
the Court upon the evidence in this case, all of which 
[fol. 548] is extremely detrimental, harmful, prejudicial 
and further deprives this Defendant of a fair trial, as



103

is required by the laws and the Constitution of the State 
of Texas; wherefore, this Defendant asks this Court to 
consider this objection and to rule upon it accordingly.

The Defendant specifically excepts to Paragraph 6 of 
the Charge of this Honorable Court herein, wherein, in 
answer to Defendant’s Requested Issue (said issue is 
Issue 6), and although requested by the Defendant, the 
fact that evidence was allowed over Defendant’s objec­
tion to be injected into this case, which evidence was a 
result of an illegal arrest, and the subsequent fruits of 
said illegal arrest, Defendant was forced to request of 
this Court this issue, which issue does not and can not 
in any way correct, erase or alleviate from the jury the 
harmful, injurious, prejudicial and detrimental evidence 
which has been allowed in this case, for which reason 
the Defendant further feels that this objection should 
be sustained by this Honorable Court.

Wherefore, the Defendant respectfully submits to this 
Court the aforementioned objections and asks this Hon- 
[fol. 549] orable Court to rule upon them accordingly.

THE COURT: Mr. Court Reporter, note that the ob­
jections and exceptions of Defendant are overruled.
[fol. 550] (Wednesday, July 26, 1967:)

(The Jury returned to the courtroom, and the fol­
lowing proceedings were had, to-wit:)

THE COURT: Mr. Court Reporter, you will note
that after both sides have rested and closed that the 
Court is affording the State an opportunity to proffer 
an item of evidence in this cause.

MR. LORAN A. SMITH, having been previously sworn, 
was recalled and testified further, to-wit:

RE-DIRECT EXAMINATION 

BY MR. RENFRO:
Q Mr. Smith, you were sworn yesterday and you testi­

fied on this stand?
A Yes, sir.



104

Q Are these the shoes here that you testified to yes­
terday as being in your custody since the 9th day of May, 
1967, and taken from the Defendant?
[fol. 551] A Yes, sir, they are.

Q Are those the same shoes that were identified by 
various witnesses in here on that stand yesterday?

A Yes, sir.
Q As being the same shoes that were compared with 

the tracks at Mrs. Stowe’s house?
A. Yes sir.
MR. RENFRO: With that, Your Honor, I would like

to introduce those shoes into evidence.
MR. SOURIS: We wish to object to the introduction

of the shoes, Your Honor. First, that they are the fruits, 
the results of an illegal arrest made upon this Defendant 
without just cause in violation of his constitutional rights 
under the United States Constitution, the Constitution of 
the State of Texas in complete derogation of the mandates, 
provisions, sections of the Code of Criminal Procedure. 
We feel that to allow these shoes to come into evidence, 
Your Honor, would be to allow this Defendant— or to 
force this Defendant to testify against himself, and we 
object to their introduction.

Also, we object further on the basis that the entire 
[fol. 552] transaction from his illegal arrest until the 
time of his preliminary hearing or his appearance before 
a magistrate, which was not done immediately, was all 
attended only by a law enforcement officer; there was no 
one present or available who was not a law enforcement 
officer. We fell this would further substantiate the illeg­
ality by admtiting these in evidence.

THE COURT: Note the objection is overruled.
MR. SOURIS: Note our exception thereto.

(The shoes hereinbefore referred to are identified 
as State’s Exhibit No. 7.)

THE COURT: Now, with that, Mr. District Attorney,
do you again close?

MR. RENFRO: I again close.
THE COURT: Mr. Souris?
MR. SOURIS: Close, Your Honor.



105

THE COURT: All right.
Gentlemen of the Jury, the Court will immediately 

read the Charge in this case, and you are instructed that 
once the Charge is read that you will have no further 
ffol. 553] communication with anyone, except the fellow 
members of your jury, and to express any needs that you 
might have, while you are in the jury room, to the officer 
who is in attendance outside the jury room. You are not 
to make any telephone calls. You are not to permit any­
one to talk to you. You are not to communicate with 
anyone, other than your fellow jurors, until such time 
as this case is completed.

All right, Gentlemen of the Jury, the Charge of the 
Court in this case reads as follows.

(At this time the Court’s Charge was read to the 
Jury.)

THE COURT: Gentlemen, you may address the Jury.
MR. SOURIS: Your Honor, we do not have the daily

notes in evidence here. I would like to have them properly 
marked and placed in evidence before the argument com­
mences.

(The daily notes were marked for identification as 
Defendant’s Exhibit A, and the same appears in this 
record at the page shown in the index of exhibits.)

[fol. 554] THE COURT: You may address the Jury.
MR. RENFRO: It it please the Court, Mr. Souris,

Gentlemen of the Jury: I am going to start out by saying, 
and I am not going to take much of your time on the open­
ing argument. I will reserve most of my time for closing, 
but let me assure you gentlemen that if I hadn’t have 
called each and every one of you gentlemen— and each of 
you gentlemen have as much sense or more than I do— you 
wouldn’t be on this jury, because I would have exercised a 
peremptory challenge, which I didn’t do. Also, I hope you 
won’t hold it against me since you were questioned on 
voir dire examination of what you considered an elderly 
person, what happened to be an elderly person, because I 
happen to be over sixty-five.

I am not in this case to make any kind of a reputation. 
I have been in this game for thirty-five years, too long



106

for me to be trying to do something to make a reputa­
tion. My reputation, good or bad, has been established 
a good while.

Gentlemen, I am going to tell you from the depths of my 
heart that I have always dreaded the day ever coming 
when a crime of this kind is committed. I have had a 
[fol. 555] horror of it every since I have been practicing 
law, and every since I have been prosecuting attorney, 
which started back in 1933.

Now, let’s examine this charge here. It’s very simple. 
The testimony in this case is very simple. It isn’t long. 
It isn’t complicated. I don’t think there is any question 
in the minds of anyone of you gentlemen but what this 
Defendant, Elmer Branch, did on the 9th day of May, 
1967, break into the home of Mrs. Grady Stowe, a widow, 
there by herself, and in a brutal, as almost as brutal a way 
as could have been done, raped her. You have her clear- 
cut testimony from that stand, of the details of that sordid 
affair. You have the telephone call from Punk Stowe to 
our Sheriff telling him that his mother had just been raped 
by a Negro who was in route towards Vernon at that time.

All the defense has made up, played lound and long, 
is that this was an illegal arrest. May I submit to you 
gentlemen that the law provides and this Charge tells you 
the law provides that if a felony has been committed, any 
reliable citizen has called that the crime has been com­
mitted, and that the one who perpetrated the crime is in 
[fol. 556] flight, they don’t know who the party is at that 
time, that an arrest without warrant is perfectly legal. 
Otherwise, gentlemen, you could never arrest a bank 
robber leaving from the scene of the crime or any kind of a 
highjacker where the head was covered up, because you 
wouldn’t know who to charge while they were fleeing. 
Now, gentlemen, an arrest in that condition is perfectly 
legal, legitimate in every way, and is the only way that 
your homes and mine, your businesses and mine, your 
lives and mine can be protected. If we couldn’t do that, you 
would have no protection in the State of Texas to your 
liberties.

We still haven’t reached the point— although sometimes 
I think we are getting close to it— to where the ninety-



107

three per cent of good citizens are at the mercy of the 
seven per cent criminal law violators in our country, and 
that is what our statistics show at this time.

Gentlemen, we have a man coming to Mrs. Stowe’s 
house at night. He has worked out there for her hus­
band prior to his death. He knows that she is there by 
herself, that she is a widow. He rips the screen off the 
kitchen and crawls through; comes in and rips the cover 
[fol. 557] off the bed, grabs the the arms of Mrs. Stowe. 
She is lying in the right direction on the bed, head to 
foot. Gets her around crosswise of the bed with her 
head down between the bed and the wall, and finally 
forces himself between her legs, forces his private parts 
into her’s, and completes the act of intercourse. Then he 
has the temerity, the deprivity to tell her he is going to 
do that on the hour every hour. She asked him “ Why 
did you come to a person of my age?” His answer, “ I 
wanted to see how you liked a colored man.”

Now, gentlemen, I have tried to keep races out of this 
case. Whether you believe it or whether you don’t, I 
prosecuted a man for raping a Negro woman here. I 
have forgotten now what the penalty was, but I prose­
cuted him just as hard as I am prosecuting that boy 
there, and I say to you as long as I am District Attor­
ney, if it comes to my attention that a white man has 
gone down there and raped a Negro woman, I will prose­
cute him just as hard as I am prosecuting that boy here 
today. Don’t you think I won’t. We have got no place 
for that in this country. It’s here. I know it’s here, and 
in certain places they are having hell, but I still tell you 
we have no place for that in our society, but I tell you 
[fol. 558] that any man that breaks into a widow’s house 
where she has no protection, and rapes her by force 
should be sent to the electric chair to tell the whole world 
and anyone who is inclined to want to go and do like­
wise that if you do and we catch you, we will kill you.

MR. SOURIS: Your Honor, I object to that. I don’t
believe that is proper argument. I believe it’s highly 
prejudicial, as to “ tell the whole world” .

THE COURT: Overruled. Go ahead.
MR. SOURIS: Note our exception thereto.



108

MR. RENFRO: That is what this trial is for and
what the1—

THE COURT: Continue your argument, Counsel.
The Court has ruled on it.

MR. RENFRO: Sir?
THE COURT: The Court has ruled. Continue your

argument.
MR. RENFRO: If the Court please, I am. I wasn’t

commenting on your ruling.
Now, gentlemen, we have got plenty of corroboration 

[fol. 559] of Mrs. Stowe’s testimony that she ran down 
through the field to her son’s house, excited and crying, 
stickers in her feet, told her son what had happened. 
The only thing that I regret is at that time she did, 
before she come to town, was that she cleaned herself up 
thoroughly.

MR. SOURIS: Your Honor, I am going to object.
There is no evidence whatsoever of that.

THE COURT: Sustained.
MR. SOURIS: It’s highly prejudicial.
THE COURT: Sustained.
MR. RENFRO: If the Court please—
THE COURT: I sustained the objection, Counsel.
MR. RENFRO: May I have the record read back,

J udge?
THE COURT: Sustain the objection.
MR. RENFRO: May I tell this jury that she did take

a bath?
THE COURT: No, sir. No, sir. It’s not in evidence,

[fol. 500] MR. SOURIS: I move for a mistrial, Your
Honor.

THE COURT: Overruled.
MR, SOURIS: Note our exception.
THE COURT: You will not consider the statement

of the District Attorney for any purpose whatsoever.
Continue your argument.
MR. RENFRO: We have the son, Punk Stowe, call­

ing the Sheriff, also calling the Police Department, and 
giving an alarm. You have the testimony of the city 
officers that they immediately went on North Main Street, 
and after stopping one car and releasing it, they went



109

across the intersection to this Texaco station— I have 
forgotten the name of the party that runs it. — in time 
to see this Defendant drive up in a car, stop in the street, 
hesitate, as if to make up his mind which way he was 
going, then he turned into the filling station. They closed 
in and told him that the deputy sheriff would like to 
talk to him. Then we have the two deputy sheriffs com­
ing to join them, taking the Defendant over on the other 
[fol. 561] side of Blake’s Junk Yard. In the meantime, 
the sheriff comes out there observes the type clothing the 
Defendant has on, immediately goes over to Mrs. Stowe’s 
and gets her description of what the man wore and 
looked like. Then he calls back and tells them “ that is 
the man we are after. Hold him. Take him to the jail 
and take his shoes and bring them out here.”  At that 
time the testimony is that the Defendant went haywire, 
cursed them and said, “ You will never take me to jail.” 
You have got the testimony of the police officers that 
when he drove in there that his pants were still un­
zipped. Why? Because he left the scene of his crime so 
fast that he didn’t realize that he hadn’t zipped his pants 
up. Then, as soon as the Defendant saw that he was 
going to be charged, that he was the man they wanted 
— he could hear that radio in the car the same as the 
officers could. — he went haywire and he said, “ You 
can’t take me to jail.”  They had to call for help. It 
took four of them to put a handcuff on him and take 
him to jail. If that isn’t corroboration of Mrs. Stowe’s 
testimony, then I don’t know anything about the prac­
tice of law, criminal law especially.

Now, gentlemen, please bear this in mind. This is not 
my case. Under the law, when the District Attorney has 
[fol. 562] submitted all the testimony at his command to 
you gentlemen, and when my closing argument comes 
and I sit down, I will have discharged my duty to the 
State of Texas. My responsibility will then be at an 
end, and the responsibility of this case solely then rests 
upon the shoulders of you twelve men, and you wouldn’t 
have it any other way. That is our way of life. That 
is our bulwark of justice, both for the State, the suppres­



110

sion of crime and the protection of those who are charged 
with the crime.

Now, gentlemen, I am going to let the Defense make 
their talk and I will close as soon as he finishes.

Thank you very much.
MR. SOURIS: May it please the Honorable Court, 

Mr. District Attorney, Gentlemen of the Jury: First, I 
want to thank you for your attention, the time that you 
have been forced to take from your jobs and your home. 
Elmer Branch thanks you. I thank you as an officer of 
this Court. We want to thank Judge Davis for his kind 
considerate handling of this case, his thorough attention 
to everything that has transpired. We want to thank 
[fol. 563] these law enforcement officers who have given 
their time who have been here, have seen that this trial 
progresses smoothly.

Now, gentlemen, the evidence is in. As I told you be­
fore on voir dire examination, and as you well know, 
you now have your evidence. What Mr. Renfro says 
and what I say is not evidence in this case. All that 
we can try to do is maybe point out some of the high­
lights, point out some of the factors of this case. Cer­
tainly, I represent the Defendant, and I am going to try 
and show you evidence that was presented to you favor­
ably to the Defendant, if any. The District Attorney is 
certainly going to try and substantiate his side. The 
Code of Criminal Procedure, State of Texas, lists among 
the duties of the District Attorney, “ shall be the primary 
duty of all prosecuting attorneys, including any special 
prosecutors, not to convict, but to see that justice is 
done.” And that is all any of us want.

I wish that I were smart enough to get up here and 
be able to sway you with eloquence, with fancy talks 
with quotations from the Bible or books, great men, but 
I am not. All I can do is to try and go over the facts 
of this case with you, which is my right and my privilege, 
[fol. 564] and maybe, in some way, clarify that hard 
road that you have.

Gentlemen, I was appointed to represent the Defend­
ant in this case on the 9th day of May, 1967, and I have 
had his life on my shoulders since that day. As that



I l l

clock ticks, that time grows shorter, then that will be 
handed to you. We have no finer system in the world 
than the jury system. I hope that we always have it. 
Not that a judge is not a good system. In this case, if 
this Defendant was guilty, pleaded guilty, and wanted 
to plead guilty before the Court, he could not do it. In 
a capital case he can not do it. This Defendant wants a 
trial by jury, and that is what he has.

Now, gentlemen, the District Attorney alluded to mak­
ing a reputation, and I presume he was alluding to me. 
I will say this, gentlemen. I took an oath when I com­
pleted my education to become an attorney, and I intend 
to abide by that oath, and I was appointed by this Court 
to represent this Defendant whether I wanted to or not, 
and nothing is going to keep me from doing that, if I 
felt I was obligated to do it and this Court saw fit to 
appoint me. If I was trying to build a reputation, gen­
tlemen, I believe that all of you would understand that 
I might possibly choose my cases, rather than hard cases, 
[fob 565] and this is a hard case. Let’s face it. No one 
in that jury or myself would ever say that that lady 
lied. She had never been on the witness stand before in 
her life, and she went through a horrible experience, 
and I don’t think anyone in this jury would doubt, that 
every word she says is true. She was raped by a Negro. 
The question is was it this Defendant? Now, there is 
a lot of evidence that points towards him. Let’s don’t 
be naive and try to say that there isn’t, and I am not 
going to try to tell you there isn’t any evidence, because 
there is, and it’s strong evidence. We have a capable law 
enforcement agency in this community. The City Police 
worked on it; the Sheriff’s Office worked on it, and the 
Sheriff’s Office worked on it under a handicap, because 
there was extremely close feelings. One of the officers 
was born and raised out there. He knew this lady all 
his life just like I have, and I assure you there was feel­
ings there that had to be overcome, and yet they main­
tained their position, they abided by the law as much 
as they could. They didn’t abuse, harass or harm this 
Defendant. We also have the same proposition with the 
Sheriff. I doubt that he will ever have a case that will



112

more personally involve him, but I want to commend 
[fob 566] him at this time to you for treating Elmer 
Branch as he would treat anyone.

Now, gentlemen, the question in my mind is whether 
or not Elmer Branch was the Negro, the colored person, 
that raped Mrs. Stowe. Now, if I made anyone mad on 
this jury, please be mad at me, not Elmer Branch. I 
objected, yes, sir, strenuously, many times. I even ob­
jected in the course of the District Attorney’s argument, 
and if I get out of line, he will object to something I 
may say. I want Elmer Branch, or any man sitting next 
to me in that chair, to have a fair and impartial trial, 
and if I possibly can, I am going to see that he gets it, 
and I am going to object, and I am going to try to keep 
out evidence, or I am going to try to put in evidence 
that I do not feel should be in the case. If it appeared 
at times I was hostile towards members of the law en­
forcement force, and I did ask you on voir dire if they 
took the stand and testified, would you give more weight 
to their testimony than you would any other individual, 
and each and every one of you assured me the fact they 
were wearing a uniform made no difference whatsoever, 
and I appreciate that and I am sure that is exactly the 
way you have considered their testimony. Well, I con­
sider it the same. They are my personal friends. I see 
[fob 567] them every day, many, many times each day. 
We work on cases. I have been on the other side of 
cases; I have been on the same side they have been on, 
and I consider each and every one of these officers my 
personal friends. I would not hesitate one minute of 
accusing them or getting right in the middle of them if 
I though they were out of line, because I fell like that 
that is the only way the proper administration of the 
law can be had.

Now, we will go back over an area that to me is of 
prime importance, and it’s very important right now, 
gentlemen, because each of you has stated to me on voir 
dire under oath that you are well aware of riots and 
demonstrations all over the country. Law enforcement 
is having its problems, has its hands full. Now, para-



113

mount and above everything, though, is the right of the 
individual. If we ever lose that right, then, gentlemen, 
wTe are in trouble. You have heard me mention the Con­
stitution of the United States of America, the Constitu­
tion of the State of Texas, and all of the laws pertain­
ing thereto insofar as they are applicable in any area 
in this case. I maintain above all, gentlemen, that the 
individual must be protected, and in this case I have 
presented that problem, a problem in that area several 
times.

Now, gentlemen, we may have the right man. Elmer 
[fol. 568] Branch may have committed the rape, and he 
may not, but that is for you to say. That is your job, 
but I have maintained strenuously that his original ar­
rest was illegal.

Gentlemen, the Charge which this Court charges you, 
and this is the law which you have sworn under oath to 
go by. “ In this case the issue has been raised as to 
whether there was a legal arrest of the Defendant. In 
the event the arrest was not legal, the evidence relating 
to the shoes and foot prints at or about the scene of the 
crime is not admissible.”  The fruit of an illegal arrest. 
“ I instruct you that the only circumstances under which 
one may lawfully be arrested without warrant is where 
a peace officer is informed by a credible person that a 
felony offender is about to escape and there is no time 
to secure a warrant.” Now, gentlemen, I don’t want 
to bore you above all, but I do not believe that over one 
or two of you will ever be presented with this again for 
your consideration, but it directly affects each and every 
one of you, because the minute you drive down the street 
in your automobile, you are placed in the position of 
being treated as this Defendant was. Now, what can 
you do? The notes at the City of Vernon Police Depart- 
[fol. 569] ment states that any officer listening to the 
radio message to “ stop every car that had colored sub­
jects in them and hold them until they could get there” .

Now, gentlemen, I don’t want to go far afield and 
bring in hypothetical cases that would be out of reason, 
but we must tie what happened in with the constitu­
tional provisions which we have, thank God. That is, the



114

right against an unreasonable search and seizure. I know 
that these officers were doing what they thought they 
could, in any way they could, that they wanted to try 
and apprehend the felon, but I maintain and will main­
tain that they exceeded their authority when they said 
“ stop any colored subjects” . You can not do that, and 
any evidence that is secured after an illegal arrest is 
inadmissible.

Now, gentlemen, I don’t know what weight you are 
going to give to the tennis shoes. Personally, I think you 
have heard enough testimony that you would be justi­
fied, in all probability, and I am not invading the prov­
ince of the jury one way or the other, possibly you would 
say from the testimony that you have, and I have it 
verbatim, that they matched foot prints out there. That 
tends to put this Defendant at the scene of the crime, 
[fol. 570] That is all you have.

Gentlemen, what worries most of you is, today, if you 
can take the shoes off of a man and use it in evidence 
against him, where will it stop? When will they be able 
to reach into your mouth and down your throat and jerk 
parts of your body out and use it in evidence against 
you? You have heard the facts and the testimony, and 
you have the job. Was a felon trying to escape? A Ne­
gro drives into a filling station. They have no descrip­
tion. They didn’t know who he was. They didn’t know 
if  he was driving a car or if  he wasn’t. The testimony 
was by the prosecuting witness that the subject left in 
an automobile and made a statement that he had an 
automobile, and yet each and every colored person, and 
I believe on the second or third try the Sheriff finally 
said that his instructions were only the cars coming from 
the north. There are a number of Negro families living 
north of the expressway. Had anyone else come up, it 
matters not who he was, preacher, citizen, dish washer, 
whoever he might be, that man would be arrested, and 
as the officers told you, no, he couldn’t leave. “ I f he had 
tired to have left, we would have forcibly detained him.”

Now, the District Attorney has made much of the fact 
[fol. 571] that when this Defendant was told he was go­
ing to jail he put up resistance. The law is that you



115

have the right. I have the right, and I would use it, 
gentlemen. If I am ever illegally detained, I have the 
right to use whatever force is necessary to extricate my­
self, and I will do it. This man tried to extricate him­
self. You have the right. The District Attorney can 
not tell you that that is not the law. Be that as it may, 
gentlemen, there is Elmer Branch, nineteen or twenty 
year old boy. He is not a man. The District Attorney 
would like for you to believe he is a man, but he is not. 
He is either nineteen or twenty years old. I don’t know 
whether he is even that. There has been no proof as to 
his age.

There is a pair of shoes that very few people would 
wear. Now, I presume they are the ones that were taken 
from the Defendant, but I think if you will look at them 
you will see there is Elmer Branch. Now, gentlemen, 
these shoes may match the prints out there. Maybe they 
do. That is for you to say. Where is the plaster cast 
of the foot prints found there? Where is the scientific 
sand analysis of soil found on those shoes with the analy­
sis of dirt and sand found at the prosecuting witness’s 
[fol. 572] residence? Where are the finger prints? Gen­
tlemen, we are not living in horse and buggy days any 
more. We are modern today. We are travelling so fast 
now you can’t even comprehend the speed. Law enforce­
ment has all the money in the world available to them. 
They have the most scientific of all crime detection. 
Laboratories. Nothing. Maybe that is enough. You are 
the ones that are going to decide that.

Gentlemen, on voir dire examination I questioned each 
of you as much as I felt necessary. I did that for two 
reasons. Of course, one was to try to attempt to report 
with you or maybe know you a little bit. Of course, 
another basis was that I had to try and look into your 
mind to determine what kind of a person you are, and 
evaluate whether or not I felt that you should serve on 
the jury to determine whether or not Elmer Branch is 
guilty or whether he is innocent, and if either way, what 
type of punishment you might render. Gentlemen, I 
didn’t do that blindly. I have had extensive training in 
psychology and sociology myself. I fell I can evaluate an



116

individual, and I would be telling you a falsehood if I 
didn’t also tell you that I knew a lot more about you 
before you came in here than you think I did. I investi- 
[fol. 573] gated practically the entire panel ahead of 
time. I think I knew the answer to practically every 
question I asked you before you answered. I wasn’t de­
ceiving you. I wanted to find out what kind of person 
you were, and I think I know, and whichever way you 
decide in this case, I know you will do it from your 
heart, and I know you will do it because you feel it’s 
right, and I believe you will do it because whatever pun­
ishment, if any, and you find him guilty is applicable.

Gentlemen, on voir dire examination I asked you if 
you would accept testimony from that stand by psycholo­
gists, sociologists, medical doctors, whoever they might 
be, and every one of you assured me that you would. I 
think one or two of you said you weren’t too familiar 
with that type of practice or that endeavor, but that you 
would give it whatever weight you thought it should 
have. Now, gentlemen, I subpoenaed three men, em­
ployees of the State of Texas, the same as the District 
Attorney. They draw their check out of the same place, 
out of our contributions. You heard these men testify 
that they didn’t expect a penny from this Defendant, 
because they came up here under subpoena, and they had 
to be here or else Mr. Smith would have gone and gotten 
them and brought them down here, I will assure you. 
[fob 574] Now, why did I bring these men here? I be­
lieve each of you know now. We had Mr. Wooten from 
the Texas Department of Corrections who presented his 
report. Now, they are all stapled here together, and you 
have the right to take these to the jury room with you. 
I am not going to read them to you, because you have 
heard excerpts from these reports. Now, these are the 
combination reports. They are the parole summary from 
the Board of Pardons and Paroles, and the admission 
summary is from the Texas Department of Corrections. 
Now, Mr. Wooten is with the Texas Department of Cor­
rections, and his report is here based upon findings, by 
psychology, sociology and other qualified personnel when 
Elmer Branch went to Huntsville to start serving time



117

on a three year sentence for theft. Gentlemen, you were 
told by Mr. Wooten that Elmer Branch has the mental 
age of a 5.5 individual; that he has an I.Q. of 67, which 
if I am correct, I believe he stated was low, and I be­
lieve that I am correct. You remember, I hope. I am 
not trying to confuse you, but I believe, if I remember 
correctly, that he stated that Elmer Branch, in his opin­
ion, was dull; that he needed—  No, that was Mr. Hens­
ley. But I believe that he got his point over to you that 
[fol. 575] from his analysis, his report that he submitted 
that Elmer Branch has the mental age of a 5.5 year old 
individual, and has the I.Q. of a 67 rating. Gentlemen, 
that was substantiated by Mr. Hensley who is with the 
Board of Pardon and Paroles. His opinion was that this 
boy needed supervision, needed somebody to follow him 
around and tell him what to do.

Mr. Sneller, his probation officer, had the benefit of 
both reports, and he visited and counseled with the De­
fendant until such time as he was arrested and charged 
in this case. Then he visited him in jail, and what did 
he testify to from that stand that Elmer Branch told 
him in jail? “ I didn’t do it” .

Gentlemen of this jury, I am not going to try in any 
way to influence you or to invade your sole job. The 
province is yours, what you do in this case, but I don’t 
believe, if you find this Defendant guilty, that you will 
send a boy to the electric chair.

Now, gentlemen, the indictment was read to you that 
(leaving out the formal parts) on or about the 9th day 
of May, 1967, before the presentment of this indictment 
in the county and state aforesaid Elmer Branch did then 
and there unlawfully and in and upon Mrs. Grady Stowe 
[fol. 576] make an assault and did then and there by 
force, threats and fraud.

Gentlemen, you will notice in the charge to you, you 
will remember the evidence, that the only instructions 
you have is “ to constitute rape by force.”  The State had 
to abandon and leave threats and fraud out. I told you 
before we came in here, I told each of you on voir dire, 
the District Attorney would know a lot more about the 
case after it was over than he did then, and he does. If



118

this Defendant is guilty of raping Mrs. Stowe, it is only 
by force, and how much force? You heard it. Thank 
God you didn’t miss a word, and that is what I wanted. 
You paid strict attention to every word that Mrs. Stowe 
told you, and I think you know the amount of force, 
enough force to overcome her resistance, if he did. Some 
Negro did. There is no doubt, I have known this family 
all my life, and I will probably lose them as friends over 
this case, because I am representing this Defendant. 
Sometimes things work out that way.

Now, gentlemen, I point that out to you for this rea­
son. I am entitled to, first. Secondly, we read in the 
papers and we are told, those of us who practice lav/, 
and for instance in this case, I have probably read a 
[fol. 577] hundred rape cases in the last three days. I 
point out that the original indictment, as brought, al­
leged things that wasn’t there, alleged threats and fraud, 
and there wasn’t any proof. The State had to abandon 
it. I point out to you further in the charge the punish­
ment, and that again is an element that I went over 
with you in voir dire examination. “ The penalty pre­
scribed by the statute of the State of Texas for the of­
fense of rape is death, or confinement in the penitentiary 
for life or for any term of years not less than five.” At 
this point I ask you and each of you, please, does it say 
a white man, does it say a colored man, does it say a 
Japanese, a German, a Jew or anyone? The punishment 
is the same for anyone.

Now, gentlemen, on voir dire I asked you individually, 
after the State had qualified you on the death penalty, 
and each of you answered affirmatively, that you could 
render a death penalty, if the law authorized it, and the 
facts and circumstances so warranted it. Now, that 
question wasn’t asked just because Mr. Renfro wanted 
to hear himself talk, or I didn’t reiterate it two or three 
times to you because I wanted to hear myself talk. We 
had a purpose and reason in that, and I sure had one. 
Mr, Renfro’s was could you award the death penalty, 
[fol. 578] His job is not to convict, but to see that jus­
tice is done. My job is to represent, to present Elmer 
Branch’s case to you, and I am not being presumptuous,



119

gentlemen. A 5.5 mental age individual can not present 
a case to you. Now, why, again, I ask you. Why does 
the law give those extremes in a rape case? A maximum 
of death; a minimum of five years? And I received an 
answer from one man on the jury panel, which I ap­
preciated, “ I won’t give five years, if I think he is guilty.” 
That was directly, bluntly to the point, and that is the 
way he felt, and he is on that jury. He is one of you. 
That is the way he felt. All of you may feel that way. 
Well, that is fine. That is up to you individually.

As I say, I’m trying to point these out to you. It’s 
not evidence in this case. You don’t even have to con­
sider what I say, but I want to impress upon you why 
did our legislature see fit to vary the punishment in a 
rape case? My interpretation of that is this. As I men­
tioned a moment ago, I have read over a hunderd rape 
cases in the last few days researching the law. The 
reason, in my opinion, and it’s only my opinion, which 
I am allowed to give you, I am qualified, I believe, as a 
practicing attorney, my opinion is that the severity, the 
[fol. 579] brutality, the animosity, the cruelty of the act 
determines the punishment, and thank God, all of us do, 
except for the act of sexual intercourse, Mrs. Stowe is 
not harmed. She is embarrassed to no end, gentlemen. 
We are embarrassed for her, but there is not one bit of 
testimony in this case that she was harmed. Now, the 
threats and fraud part of the indictment were thrown 
out. She wasn’t threatened before the act was com­
mitted on her, either by this Defendant or whoever the 
individual was that assaulted her. She was held and 
forcibly assaulted, but she was not stabbed with a knife, 
thank God. She was not hammered over the head with 
a blunt instrument, thank God. She was not shot with 
a gun. She was not kicked. She was not stomped. No 
brutality, other than the act of intercourse. What trans­
pired after the act, gentlemen, doesn’t come in. I think 
you should consider it as a basis and as a factor in your 
punishment.

As I say, I didn’t cross examine Mrs. Stowe on the 
stand, because I feel like that what she said was the



120

truth, other than possibly the identification. I don’t know, 
gentlemen, if  you find the death penalty, whether Mrs. 
Stowe could sleep at nights. I am not positive that she 
[fol. 580] knows that this is the individual. Let’s face 
it, gentlemen. Negro males of this age and size look 
alike.

This was a traumatic experience. This undoubtedly 
was the most horrible thing she has ever gone through 
in her life, and we are all thankful she was a strong 
woman and had presence of mind, and only her conduct, 
only her— I am going to say tenacity of self preservation 
there made the crime what it was. No, she didn’t volun­
tarily submit, and I think she put up a resistance to the 
utmost of her strength, and I think that whoever as­
saulted her, “ I never saw a man with that kind of power 
in his hands.”  Those are her words. Gentlemen, that is 
the reason the legislature saw fit to give you, the jury, 
that latitude and that leeway and those extremes in 
punishment. If Mrs. Stowe had been nine or ten years 
old, she had been brutally stabbed in the back and ren­
dered paralyzed for life, if she was mentally incompe­
tent and out of a state hospital and had no control over 
her will, these are all cases that have happened. I think 
those are factors that you would consider, and I think 
that they would tend to move you up the ladder, if  you 
find this Defendant guilty beyond a reasonable doubt, 
but you have the leeway, and whatever you find, that is 
[fol. 581] for you to decide.

Ironically enough, alibis are hard to have at 2:00 or 
3:00 o’clock in the morning. No alibi was presented to 
you. Let’s face it. But the unrefuted testimony from 
that stand, the mother of Elmer Branch substantiated 
his mental condition, his slowness, his level; his grand­
mother the same. These are factors, gentlemen, which 
I know you will consider. No father. Poverty. I don’t 
know how many nights the boy went to bed without any 
supper. What chance did he have? If he had a chance, 
he didn’t have anything to do it with. You are to weigh 
the testimony of Mr. Wooten, Mr. Hensley and Mr. 
SneF.er. It is unrefuted. I ask that you give whatever 
weight you feel that it should have.



121

Gentlemen, before I close, I do want to tell you that 
the District Attorney, as is the procedure in criminal 
cases, has the right to open, which he has already done, 
and I have the right to make my argument, which I 
have just about concluded, then the District Attorney 
gets a chance to come back in rebuttal. That gives him 
a pretty good edge on me, because he can take a little 
advantage of me in what he can say, and I can not refut 
it in any way. I ask that you consider whatever else Mr. 
[fol. 582] Renfro tells you in that light, and again I 
hope that I have not made any of you mad at this De­
fendant. I hope that I have not caused any of you to 
feel bitter towards me. If you have, please towards me 
and not this Defendant.

Remember, if the arrest was illegal, the shoes and the 
fact that the tracks are purported to have matched is 
not to be considered. If you feel that Mrs. Stowe’s tes­
timony convinces you beyond a reasonable doubt, as clear 
as light, that Elmer Branch committed the offense of 
rape, then and only then will you find him guilty. I ask 
that you and each of you weigh all of these circumstances, 
please. If you find him guilty, the supreme penalty only 
if you can find the facts warrant it.

Thank you.
MR. RENFRO: If it please the Court, Mr. Souris,

Gentlemen of the Jury: I am not going to take too much 
time in closing argument. You have been patient. As I 
said before, the evidence is short. It isn’t too involved, 
but I w7ant to make this clear. He mentioned the fact 
that I abandoned threats and fraud. Gentlemen, you all 
are not attorneys. He understands that. There are nu- 
[fol. 583] merous indictments that carry four or five 
counts. The State has the privilege when the evidence is 
brought in to elect upon which count the State relies, 
and that was done in this case. It could be a rape, all 
right, by threats alone, of putting a person in fear of 
life, serious bodily injury, where they give in and still 
there is rape and carries a death penalty as the maxi­
mum penalty, and the same thing is true from fraud, 
but be that as it may, if that indictment wasn’t good, 
the Court would already have thrown it out.



122

Now, when he first started making his argument, he 
made the remark that all we had was the shoes. If all 
we had was the shoes in this case, I would be shaking 
in my boots so far as a verdict was concerned. We have 
Mrs. Stowe’s testimony that the light always stayed on 
in the bathroom; that she sat on the side of the bed, 
she could see the Defendant. He asked her for what 
money she had. She finally got him to step aside where 
she could get her purse. She poured the money into his 
hand, and she started begging to go to the bathroom to 
get her a drink of water, which he finally gave in and 
let her do, but as she come out of the bathroom, she 
flipped the hall light on, and he asked her, “ What did 
[fol. 584] you want to do that for?” She got a good 
look at his face, and now the defense attorney says Ne­
gro boys or all young men look alike. If he doesn’t have 
a distinctive look, then turn him loose. There is not a 
man on this jury, if you had to come in close contact 
with him under heat of passion or excitement but what 
you would remember his face as long as you live. He 
has a distinctive look. Loran Smith testified she told 
him he had a sharp chin and high cheek bones, had on 
certain type clothes, and he had on those white tennis 
shoes.

Talking about not having probable cause for arrest 
without warrant. When he called in and told them to 
take the man to jail, that he was the man they wanted, 
she had already told him and he so testified what the 
Defendant looked like, and I submit to you again—

MR. SOURIS: Your Honor, we are going to object 
to that. The arrest in question is not when the Sheriff 
placed the Defendant in the County Jail, but the moment 
that the City Police apprehended him at the service sta­
tion.

THE COURT: The law you will receive from the
[fol. 585] Court’s Charge, and from that source alone, 
Gentlemen of the Jury.

MR. RENFRO: Now, we go back to the call that
came into town from Mr. Stowe. His mother had run 
over there in just a few minutes time from the time as



120

soon as she got loose from the Defendant, as soon as he 
took off in his car. She tells you that he went south. As 
soon as Punk could get the information from his mother, 
he called it in. He didn’t know who the Negro was. She 
didn’t know who the Negro was. Told the desk sergeant 
over at the city and on another call told the Sheriff, 
said, “ Mother has been raped by a Negro, and is in a 
car and headed south toward town.”  “ Stop all cars with 
colored subjects in them and check them out.” Harping 
about it being an unlawful arrest. Gentlemen, how many 
times have you all heard of roadblocks put up? Just last 
Sunday we had roadblocks all over Foard County.

MR. SOURIS: Your Honor, I am going to object to
that. That is extraneous evidence from another case and 
has no bearing on it whatsoever.

THE COURT: Sustained.
[fol. 586] MR. SOURIS: Thank you, Your Honor.

It’s an attempt to bring in prejudice into this case; 
I ask for a mistrial.

THE COURT: Overruled.
MR. SOURIS: Note our exception.
MR. RENFRO: Now, let’s get back to the evidence

and go over it briefly again. He says, the defense says, 
she wasn’t hurt, she wasn’t maimed for life. She told 
you right there that he had his arm down against her 
throat and her head over the back of the edge of the 
bed and pressing down and it hurt, and he finally pressed 
down enough and he wiggled around enough until he 
finally got between her legs, and gentlemen, I still don’t 
know what the State men were doing up here, and I don’t 
know whether you do or not, except to try to impress 
you that someone with a lower mentality than you have 
got is licensed to do anything he wants to and go free, 
and you gentlemen remember I asked one of them—  I 
forget which one it was, that is. the only question I 
asked—  “ Are you trying to tell this jury that he didn’t 
know right from wrong?”  He said, “ No, I am sure not. 
I am not telling that.”
[fol. 587] Now, gentlemen, if  the test is because some­
one, if  he doesn’t have a high I.Q. is licensed to go over 
the country and rape your wives or your widows if any­



124

thing happens to you, then we have come to a poor pass 
in our way of life.

You have got at least five men that testified proving 
these were the Defendant’s shoes taken off of him. They 
showed you that mark there, that break in those shoes. 
They said that it was perfect in the track; it fitted in. 
The worn places and everything on that particular heel, 
together with the track. You may take those into the 
jury room, if you want to, and examine them. You can 
take those pictures into the jury room, if you want to, 
and examine those. I want you to take this into the jury 
room with you. That shows a record of the call from 
Mr. Stowe to the City Police, as soon as his mother told 
what had happened. It also reflects the call to the Sher­
iff. It also reflects what was done, and this was intro­
duced by the Defendant. It wasn’t introduced by me. It 
was marked and introduced by the defense, and if that 
doesn’t confirm that that arrest was legal, then I don’t 
know how to convince you; that it was an arrest made 
wfih a felon escaping or trying to elude the officers, and 
[fol. 588] at such time when they did not have time to 
get a warrant. No one at the time she called in, that 
Punk Stowe called in, knew who the Defendant was. We 
had to go by the description that she gave to try and 
make a case and go from there, and if this jury should 
see fit to turn this Defendant loose because an officer 
had gone out with that procedure, then you don’t need 
anv officers, you don’t need any law enforcement.

Let me tell you something else, gentlemen. The re­
sponsibility lies with me and solely with me for you 
being qualified on the death penalty. The State allows 
me, the law allows me, as State’s Attorney, to waive the 
death penalty, but it also directs me, in a case I am go­
ing to insist on the death penalty, that I give written 
notice to the Defendant within a certain length of time, 
which has been done in this case, that I am going to 
qualify the jury and ask for the death penalty. I don’t 
know how much confidence you folks have in me as your 
District Attorney, but I am telling you, gentlemen, that 
had I not thought that this was a case that justified the 
supreme penalty, I would have waived the death penalty



125

in this case, but I think and I believe that the evidence 
all ties in, the shoes tie in, the fact that he was so excited 
[fol. 589] and in flight that he forgot to zip his pants 
up. The play the defense attorney made about the Sher­
iff “Do you arrest every man that has his pants un­
zipped?”  is silly, but that evidence is not silly in this 
case, because that is one thing that clinches this thing, 
the shoes, the testimony of Mrs. Stowe that he is the 
Negro. She pointed him out. She didn’t make any hesi­
tancy about it at all. She said, “ That is the man.” The 
fact he came into that filling station in a state of excite­
ment running in there from the north with his pants 
unzipped is just another piece of evidence showing that 
he is as guilty as sin.

Now, gentlemen, it’s up to you. You have got a re­
sponsibility. I had a responsibility when I asked you to 
qualify yourselves on the death penalty, and I could have 
left it off, but the State feels that this is a case that 
requires and justified the death penalty.

I have said all that I can, presented all the evidence 
that is at my command. Now, when I sit down there, 
as I told you before, my responsibility in this case seizes. 
It is now, or will be in just a minute, your case, your 
responsibility to show; the world, if need be, that that 
can not happen in this county, in this district, without 
[fol. 590] the death penalty being assessed against you 
if  you are caught.

MR. SOURIS: Your Honor, that is improper argu­
ment. I object to it, because it is global; no reference 
to what it will stop. There has been no testimonv that 
it would.

THE COURT: Overrule. Continue.
MR. SOURIS: Note our exception.
MR. RENFRO: Thank you, gentlemen. The case is 

yours.
THE COURT: Gentlemen of the Jury, we have now 

come to the place in the trial where you will retire to 
the jury room, elect one of your number Foreman and 
begin deliberation upon your case. As you have been 
previously instructed this morning, you must not sepa­
rate until such time as this case is concluded. You are



126

not to make any telephone calls or have any outside com­
munication. If it becomes necessary for a message to be 
sent out of the jury room, you must contact the officer 
in charge who will be seated outside the jury room.

So far as your schedule as to when you would like to 
[fob 591] go to lunch, I will leave that up to you. You 
must go in a body and be accompanied by the Sheriff. 
Please have the Sheriff notify this Court, though, when 
you intend to leave and when you intend to return.

All right, Gentlemen of the Jury, you may retire to 
the jury room with this one further instruction. I f  you 
have some question that you want to ask this Court, have 
your Foreman write it out- on a piece of paper, sign it, 
hand it to the officer outside the door of the jury room 
who will in turn hand it to this Court.

You may retire to the jury room.
(At this time the jury retired to the jury room to 
deliberate upon their verdict.)
(At approximately 10:55 a.m. the following question 
was delivered to the Court from the jury:)

“All pictures and exhibits that was introduced in this
case.

Jimmy Koontz”

[fob 592] (To which request the following reply was 
made by the Court:)

“ I hand you herewith all pictures and exhibits intro­
duced into evidence as per your request. I instruct you 
not to remove the pictures from their mountings.

Tom Davis 
Judge Presiding”

(The following statement was by the Court relative 
to the foregoing request and reply:)

THE COURT: This further matter to go into the
record, solely for the purpose of the record: That the 
instruction given to the jury not to remove the pictures 
from their mountings is for the reason that there is



127

writing on the back of the pictures which was not intro­
duced into evidence, and for the purpose of limiting the 
pictures and solely the pictures which were the sole and 
only portion of the exhibit going into evidence. The 
Court has had the same stapled to a mounting and in­
struction has been given to the jury, to which reference 
said instruction is hereby made, to not remove said pic­
tures from their mountings.
[fol. 593] (At approximately 1:30 p.m. the following 

questions were delivered to the Court from the jury:)
“ If the sentence is life, what is the minimum years 

before he is qualified for parole?
Jimmy Koontz

Is there any verdict that we could give where there 
would be no parole offered?

Jimmy Koontz”
(To which questions the following reply was made 
by the Court:)

“ Pursuant to your last two questions sent to the Court, 
you are instructed that the only answer this Court can 
give you is: You are not to consider or discuss among 
yourselves how long the accused will be required to serve 
the sentence, if any, you desire to impose. Such matters 
come within the exclusive jurisdiction of the Board of 
Pardons and Paroles and the Governor, and are no con­
cern of yours.

Tom Davis
Judge Presiding”

[fol. 594] (At approximately 2:35 p.m. the following 
request was delivered to the Court from the jury :)

“ Bring us a Bible.
Jimmy Koontz”

(To which request the following reply was made by 
the Court and delivered to the jury :)



128

“ Gentlemen of the Jury:
I cannot furnish you a Bible, nor are you permitted 

to use one in your deliberation.
Tom Davis 
Judge Presiding”

(At approximately 3:20 p.m. the following request 
was delivered to the Court from the jury:)

“ Would you retype paragraph # 5  where we could
read it.

Jimmy Koontz”

[fol. 595] (To the foregoing request, the following reply 
was made by the Court and delivered to the jury:)

“ Gentlemen of the Jury:
I am sorry. I cannot comply with your last request.

Tom Davis 
Judge Presiding”

(At approximately 3:45 p.m. the jury returned to 
the courtroom and the following occurred:)

THE COURT: Mr. Foreman, have you reached a
verdict?

MR. JIMMY KOONTZ: We have, Your Honor.
THE COURT: May I have it, please?

(Handed to the Court.)
[fol. 596] THE COURT: “We, the jury, find the De­
fendant guilty as charged in the indictment and assess 
his punishment at death.”  Signed “ Jimmy Koontz, Fore­
man” .

So say you and each of you Gentlemen of the Jury, 
this is your verdict?

MR. SOURIS : Poll the jury.
THE COURT: You would like the jury polled?
MR. SOURIS: Yes, Your Honor.
THE COURT: All right, Mr. Dickey, is this your

verdict?



129

JUROR DICKEY: Yes.
THE COURT: Mr. Ramsey, is this your verdict?
JUROR RAMSEY: Yes.
THE COURT: Mr. Koontz, is this your verdict? 
JUROR KOONTZ: Yes.
THE COURT: Mr. Gavin, is this your verdict?
JUROR GAVIN: Yes.
THE COURT: Mr. Duke, is this your verdict?
JUROR DUKE: Yes.

[fol. 597] THE COURT: Mr. Gandy, is this your ver­
dict?

JUROR GANDY: Yes.
THE COURT: Mr. Hingst, is this your verdict?
JUROR HINGST: Yes.
THE COURT: Mr. Hoke, is this your verdict? 
JUROR HOKE: Yes.
THE COURT: Mr. Raines, is this your verdict?
JUROR RAINES: Yes.
THE COURT: Mr. Warden, is this vour verdict? 
JUROR W ARDEN: Yes.
THE COURT: Mr. McCourt, is this your verdict? 
JUROR McCOURT: Yes.
THE COURT: Mr. Gordon, is this your verdict? 
JUROR GORDON: Yes.



130

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS

No. 42,306

Elmer Branch, appellant

vs.
The State of Texas, appellee 

Appeal from Wilbarger County 

Opinion— Filed December 10, 1969

The offense is rape by force; the punishment, death.
The record reflects that the victim, a widow, lived 

alone some twelve miles north of Vernon and a distance 
of about two blocks from the home of her son. Testify­
ing at the trial she positively identified appellant as the 
Negro man who, about 2 A.M., after gaining entrance 
into her house through a window, by force ravished and 
had sexual intercourse with her, and after demanding 
and taking money she had in her coin purse and threat­
ening to repeat his act, finally drove away. She imme­
diately ran to her son’s home and reported the matter. 
She described her assailant as being a young Negro man, 
wearing dark trousers and tennis shoes. Her son relayed 
the information to the sheriff by telephone and told the 
sheriff that the suspect was believed to be in an automo­
bile headed toward Vernon.

The sheriff immediately alerted all officers in the area 
by radio, requesting them to stop any car containing 
colored subjects coming into Vernon from the north. 
Within minutes a vehicle driven by appellant pulled into 
a service station on the north side of Vernon. Police 
officers of the City of Vernon observed that he was wear­
ing tennis shoes and dark trousers which were unzipped, 
and detained him until other officers arrived.

The tennis shoes worn by appellant were compared 
with the footprints found near the house in which the 
offense was committed and they matched.



131

The first ground of error complains that the convic­
tion is void because of jury misconduct in that during 
their deliberation one of the jurors “ quoted scripture 
from the Bible to other jurors.”

The second ground of error complains that the court 
erred by failing to grant appellant’s motion to subpoena 
certain jurors to prove the alleged jury misconduct.

We find no merit in these grounds of error, first be­
cause the allegations if proved would not constitute 
ground for reversal and second, because such allegations 
were not supported by affidavit of one in position to know 
what transpired in the jury room during the delibera­
tions of the jury, hence was insufficient as a pleading. 
Johnston v. State, 396 S.W. 2d 404, cert, denied, 384 
U.S. 1024, 86 S. Ct. 1976, 16 L. Ed. 2d 1029; Clifton v. 
State, 339 S.W. 2d 902; Roberson v. State, 271 S.W. 2d 
663; Brown v. State, 267 S.W. 2d 819; Vowell v. State, 
244 S.W. 2d 214; Hicks v. State, 251 S.W. 2d 409.

Ground of error No. 3 presents the contention that 
the judgment of conviction with punishment assessed at 
death violates the Fifth, Eighth and Fourteenth Amend­
ments to the Constitution of the United States; and poses 
the question of whether capital punishment inflicted as 
a punishment for “ a crime less than murder” consti­
tutes cruel and unusual punishment within the meaning 
of the Eighth Amendment, and whether when inflicted 
in a rape case involving a Negro defendant and a Cau­
casian complaining witness such a defendant has been 
deprived of equal protection of law under the provisions 
of the Fifth, Eighth and Fourteenth Amendments.

Appellant relies upon the dissenting opinion in Ru­
dolph v. Alabama, 375 U.S. 889, 84 S. Ct. 155, 11 L. Ed. 
2d 119, but concedes that this court has held that death 
in a rape case does not constitute cruel and unusual pun­
ishment and is not unconstitutional. Siros v. State, 399 
S.W. 2d 547.

Ground of error No. 3 is overruled.
The fourth ground of error presents the contention that 

the constitutional right of appellant to an impartial jury 
was violated in that the prosecution was permitted to



132

challenge for cause “ all prospective jurors who stated 
that they were opposed to capital punishment or had 
conscientious scruples against imposing the death pen­
alty.”

Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 
20 L. Ed. 2d 776, is cited and relied upon.

The voir dire examination of the prospective jurors 
does not support the ground of error. All of the jurors 
excused because of scruples in regard to inflicting the 
death penalty answered that they could not vote- for the 
death penalty regardless of what the circumstances were 
or however terrible the crime might be, or words of 
similar import.

The juror Meers, part of whose voir dire is set out in 
appellant’s argument under this ground of error, was 
excused for reasons other than his attitude toward capi­
tal punishment, appellant’s counsel stating: “ It is agree­
able with us.”

We find no violation of the rule announced by the Su­
preme Court in Witherspoon v. Illinois, supra. The jury 
appears to- have been selected in a manner consistent 
with the Texas rule set out in Pittman v. State, 434 
S.W. 2d 352, and Scott v. State, 434 S.W. 2d 678.

Ground of error No. 4 is overruled.
The fifth ground of error complains of the overruling 

of appellant’s motion “ to suppress or limit evidence 
seized as a result of illegal arrest.”

The arrest claimed to be illegal was the detention and 
subsequent arrest of appellant. The evidence claimed to 
have been unlawfully seized is the tennis shoes appellant 
was wearing.

The officer had no warrant and no time to obtain a 
warrant. The identity of the suspect was not known. 
The officer who detained appellant some 15 minutes after 
he left his victim did so at the request of the sheriff 
who had information that the suspect, a Negro man 
wearing tennis shoes, was in a car believed to be headed 
toward Vernon.



133

Art. 14.04 V.A.C.C.P. reads as follows:
“Where it is shown by satisfactory proof to a peace 
officer, upon the representation of a credible person, 
that a felony has been committed, and that the of­
fender is about to escape, so that there is no time 
to procure a warrant, such peace officer may, with­
out warrant, pursue and arrest the accused.”

Appellant points up the fact that the arresting officers 
did not have a description of the suspect or his vehicle, 
and therefore, he contends that the officers did not have 
sufficient probable cause to make the arrest.

The officer receiving the report of the rape observed 
appellant as he stepped from his car and noticed that 
his trousers were unzipped.

If the requesting officer is in possession of insufficient 
knowledge to constitute probable cause, he need not detail 
such knowledge to the arresting officer. Weeks v. State, 
417 S.W. 2d 716, cert, denied, 389 U.S. 996, 88 S. Ct. 
500, 19 L. Ed. 2d 494.

In the light of these circumstances, the officers had 
probable cause to arrest the suspect. Johnson v. State, 
436 S.W. 2d 906.

The arrest without warrant under the circumstances 
was not unlawful and the court did not err in overruling 
the motion to suppress the evidence. Beeland v. State, 
193 S.W. 2d 687; Stickney v. State, 336 S.W. 2d 133, 
cert, denied, 363 U.S. 807, 80 S. Ct. 1245, 4 L. Ed. 2d 
1151; Edwards v. State, 344 S.W. 2d 687.

We note, further, that having found the arrest legal 
and having admitted the evidence, the court at appel­
lant’s request submitted the question as a fact issue to 
the jury and instructed that in the event the jury found 
the arrest was illegal, or had reasonable doubt that it 
was legal, not to consider for any purpose any testimony 
relating to the tennis shoes and the comparison of same 
to the footprints at or about the scene of the crime.

The remaining ground of error complains of the over­
ruling of appellant’s motion to quash the indictment, the 
ground of such motion being that “ in the selection of 
the members of the indicting grand jury, the Grand



Jury Commission excluded all members of the Negro 
race from grand jury duty, which exclusion amounted 
to racial discrimination,”  and denied appellant equal pro­
tection of the law and due process of law as guaranteed 
by the Fifth, Eighth and Fourteenth Amendments to the 
Constitution of the United States.

The grand jury was empaneled prior to the date the 
offense was committed. In support of his motion to quash 
the indictment, appellant called one of the Jury Com­
missioners who selected the grand jury panel. We find 
nothing in his testimony to support a finding that Ne­
groes were purposely or systematically excluded. In fact, 
he testified that he did not know whether or not any 
colored people were chosen.

The only other evidence offered on the issue was testi­
mony to the effect that during the years 1964-1967 no 
colored persons were chosen to serve as Jury Commis­
sioners.

The burden of proving alleged racial discrimination 
in the selection of the grand jury panel rested upon 
appellant. Akins v. Texas, 325 U.S. 398, 89 L. Ed. 1692, 
65 S. Ct. 1276.

Discrimination in the selection of the grand jury is not 
shown. Such discrimination will not be presumed. Tar- 
ranee v. Florida, 188 U.S. 519, 47 L. Ed. 572, 23 S. Ct. 
402.

The ground of error is overruled.

The judgment is affirmed.

134

Woodley 
Presiding Judge

(Delivered December 10, 1969.)

Douglas, Judge, not participating.



CLERK’S OFFICE, COURT OF CRIMINAL 
APPEALS OF TEXAS

AUSTIN, TEXAS

135

I, THOMAS F. LOWE, Chief Deputy Clerk of the 
Court of Criminal Appeals of Texas, do hereby certify 
that in Cause No. 42,306 styled:

Elmer Branch, appellant 
vs.

The State op Texas, appellee

judgment of the 46th. Judicial District Court of Wichita 
County, Texas, was affirmed on December 10, 1969 and 
on December 29, 1969 mandate issued.

THEREFORE, with the affirming of Appellant’s con­
viction, this cause was disposed of by this Court on De­
cember 10, 1969, appellant having exhausted all reme­
dies in this, The Court of Criminal Appeals of Texas 
and said judgment has now become final on the docket 
of this Court.

WITNESS my hand and Seal of said Court, at office, 
in Austin, Texas, this the 4th. day of March, A. D. 1970.

/ s /  Thomas F. Lowe 
Thomas F. Lowe 
Chief Deputy Clerk 
Court of Criminal Appeals 

of Texas
[SEAL]



136

SUPREME COURT OF THE UNITED STATES 
No. 5135, October Term, 1970

Elmer Branch, petitioner 
v.

Texas

On petition for writ of Certiorari to the Court of 
Criminal Appeals of the State of Texas.

On consideration of the motion for leave to proceed 
herein in forma, pauperis and of the petition for writ 
of certiorari, it is ordered by this Court that the motion 
to proceed in forma pauperis be, and the same is hereby, 
granted; and that the petition for writ of certiorari be, 
and the same is hereby, granted limited to the following 
question:

“ Does the imposition and carrying out of the death 
penalty in this case constitute cruel and unusual punish­
ment in violation of the Eighth and Fourteenth Amend­
ments?”

June 28, 1971

☆  U. S . GOVERNMENT PRINTING OFFICE; 1 9 7 1 4 4 1 1 7 4  1 0 3