McClelland v. State

390 S.W.2d 777
Court of Criminal Appeals of Texas·Decided March 10, 1965·No. 37833·Published·Cited by 16 cases

Opinions

McDONALD, Presiding Judge.

The conviction is for the offense of accepting a bribe; the punishment, five years confinement in the state penitentiary and a fine of $5,000.00.

The appellant was indicted for the offense of accepting a bribe from James Bry-son Martin, Ross Evahn, David Hudson, E. R. Coffey, and R. M. Duren. It was alleged that the bribe accepted by the appellant was made to him by the five named persons to secure their appointment as appraisers, administrators, and guardians in probate proceedings in the Probate Court, of which the appellant was then Judge.

The appellant’s motion for change of venue from Harris County was granted, and the case was tried in Falls County.

This is an appeal from appellant’s trial and conviction in Falls County.

The state’s testimony reflected that the appellant, Clem McClelland, was at the time alleged the duly elected and acting Probate Judge of Harris County, Texas. As Probate Judge, he was required by the Probate Code of the State of Texas to appoint appraisers, administrators and guardians in the cases filed in the Probate Court.

The state adduced evidence showing that James Bryson Martin, one of the parties involved in giving the bribe to the appellant, and two other persons acting as incor-porators, obtained on December 2, 1960, Articles of Incorporation from the Secretary of State of the State of Texas, authorizing the corporation to do business under the name of Tierra Grande, Inc. It was shown that the other two parties were friends and former business associates of Martin, but that they had no financial or other interest in Tierra Grande, Inc. One of the parties merely accommodated the appellant by acting as an incorporator. The other party admitted her signature was genuine upon the Articles of Incorporation, but did not know when or under what circumstances it had been signed.

[779]*779The evidence adduced by the state further showed that on December 2, 1960, a bank account for Tierra Grande, Inc., was opened in the Citizens State Bank in Houston, Texas. During that month, and every succeeding month until May, 1962, E. R. Coffey, R. M. Duren, Ross Evahn, David Hudson, and James Bryson Martin made frequent, unequal deposits into the account of Tierra Grande, Inc. Other than the deposits made by these individuals, there was only one other deposit in the amount of $5,-000.00 made into the account. The deposits into the account were shown by voluminous bank records kept in the regular course of business of the Citizens State Bank, in which the Tierra Grande account was located. David Hudson and E. R. Coffey maintained bank accounts in the same bank, and from the records of their accounts it was shown that Hudson had deposited into the Tierra Grande account the total amount of $4,750.00, and E. R. Coffey had deposited the total amount of $3,666.10. Deposits totaling $7,975.00, shown to have come from his account in the Texas National Bank, were made by R. M. Duren. Deposits in the amount of $6,775.00, shown to have come from his account in the National Bank of Commerce, were made by Ross Evahn. Deposits made to the Tierra Grande, Inc., account by James Bryson Martin, totaling $558.00, were shown to have come from his account in the Bank of Texas. All of these banks were located in downtown Houston.

It was reflected from the state’s testimony that the only two persons authorized to make withdrawals from the Tierra Grande, Inc., account were James Bryson Martin and Helen Smith. Helen Smith, who signed most of the checks, was and had been for a number of years the appellant’s secretary.

From testimony adduced by the state, it was shown through the bank records kept in the regular course of business of the Citizens State Bank, that virtually all of the money which had been deposited into the Tierra Grande, Inc., bank account had been withdrawn systematically every month for the benefit of the appellant. The money was used to pay his club bills, parking garage fees, payment on automobiles, to send his son to camp, to pay gasoline bills, and a large part was paid to the appellant or to his wife directly. The records kept in the regular course of business of the Bank of the Southwest, where appellant maintained bank accounts, revealed that the checks drawn on Tierra Grande, Inc., payable to him or his wife, had been endorsed by them and deposited into their private accounts.

State’s evidence adduced further showed that from January 1, 1961, to May, 1962, Judge McClelland had appointed James Bryson Martin, Ross Evahn, David Hudson, E. R. Coffey, and R. M. Duren as appraisers in estates for a total of 3511 times. In this same period of time, the appellant had appointed as appraisers 257 other persons, and they had acted a total of 2,225 times. This evidence was obtained from the public records of the Probate Court.

The evidence further revealed that each appraiser in each estate received a fee of $5.00 which was charged to the court costs and paid to him through the Court all during the time up to January, 1962, when this practice was discontinued. From a random sampling of the estates, it was shown that additional appraisal fees in substantial amounts were received by the five named appraisers, James Bryson Martin, E. R. Coffey, R. M. Duren, David Hudson, and Ross Evahn.

The appellant did not testify as a witness in his own behalf. He did introduce certain evidence showing that the various appraisers had received a large number of appointments before the formation of Tier-ra Grande, Inc.

The indictment, omitting the formal parts, charged:

“ * * * that on or about the 2nd day of December, A.D. 1960, in said Coun[780]*780ty and State, that Clem McClelland was then and there Judge of the Probate Court of Harris County, Texas, a judicial officer, the said Clem Mc-Clelland having been duly elected and qualified as such officer and having entered upon the duties of said office, a part of said duties being the appointment of appraisers, administrators and guardians in matters, causes, and proceedings filed in the Probate Court; and the said Clem McClelland did then and there unlawfully, wilfully, and corruptly accept a bribe from Ross Evahn, David Hudson, E. R. Coffey, R. M. Duren, and James Bryson Martin in that he did accept Twenty-Five Thousand Seven Hundred Eighty-Three Dollars and Ten Cents ($25,783.10) in money, and did then and there accept the same from the said Ross Evahn, David Hudson, E. R. Coffey, R. M. Duren, and James Bryson Martin under an agreement with the said Ross Evahn, David Hudson, E. R. Coffey, R. M. Duren, and James Bryson Martin with the understanding that his acts, decisions, judgments, and recommendations would be influenced thereby in his judicial capacity to thereafter appoint them, the said Ross Evahn, David Hudson, E. R. Coffey, R. M. Duren, and James Bryson Martin as appraisers, administrators, and guardians in matters, causes, and proceedings then pending before the said Clem McClelland in his judicial capacity, and in matters, causes, and proceedings which would thereafter be brought before and come before the said Clem McClelland in his judicial capacity in violation of his duty as said officer.”

We think the evidence presented by this record conclusively shows that the five named persons, James Bryson Martin, David Hudson, E. R. Coffey, Ross Evahn, and R. M.

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McClelland v. State, 390 S.W.2d 777 (Tex. 1965).

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