Allen v. State, 51300

• Decision Date: 28 April 1976
• Docket Number: No. 51300,51300
• Citation: 536 S.W.2d 364
• Parties: Armon ALLEN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 364

536 S.W.2d 364

Armon ALLEN, Appellant, v. The STATE of Texas, Appellee.

No. 51300.

Court of Criminal Appeals of Texas.

April 28, 1976.

Rehearing Denied May 27, 1976.

Wilder & Tate, Henderson, for appellant.

Donald R. Ross, County Atty., and David P. Brown, Asst. County Atty. Henderson, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This appeal arises out of a conviction for voluntary manslaughter, wherein the jury assessed the punishment at twenty (20) years.

The record reflects that the appellant was charged with shooting and killing his wife.

At the outset appellant contends the court erred in excusing a juror, Roy Weaver, after the jury had been sworn and empanelled. Prior to any testimony being heard, Weaver testified he had a tightness in his chest the day before and had not been able to sleep that night. He related he had gone to a doctor's office and was found to have a temperature by a nurse and had been given a shot. Without objection, a note from James H. Mann, M.D., was offered into evidence. It read: 'This man was at my office this morning with fever, aching all over, with influenza. Do you still want him to serve jury duty today?' Weaver admitted he had not personally seen the doctor, but the nurse had given him the note after he had been asked to wait in the doctor's waiting room. He stated he would not say he was disabled, but he didn't want to contaminate the jury as he had already been asked to stay on the other side of the jury room. He acknowledged, however, that serving would involve hard-ship and be detrimental to his physical well-being and asked to be excused.

The court excused Weaver based on his condition and the physical well-being of the other jurors. The appellant objected to the court's action.

Article 36.29, Vernon's Ann.C.C.P., provides:

'Not less than twelve jurors can render and return a verdict in a felony case. It must be concurred in by each juror and signed by the foreman; provided, however, when pending the trial of any felony case, one juror may die or be disabled from sitting at any time before the charge of the court is read to the jury, the remainder of the jury shall have the power to render the verdict; but when the verdict shall be rendered by less than the whole number, it shall be signed by every member of the jury concurring in it. After the charge of the court is read to the jury, if any one of them becomes so sick as to prevent the continuance of his duty, or any accident of circumstance occurs to prevent their being kept together under circumstances under which the law or the instructions of the court requires that they be kept together, the jury may be discharged.'

In Griffin v. State, 486 S.W.2d 948 (Tex.Cr.App.1972), we held that 'disabled' as used in the foregoing Article means 'any condition that inhibits the juror from fully and fairly performing the functions of a juror.' In Griffin the juror during a noon recess was arrested and jailed for driving a motor vehicle while intoxicated. It was there held that the court did not abuse its discretion in excusing the juror and proceeding with the trial with 11 jurors.

In Clark v. State, 500 S.W.2d 107 (Tex.Cr.App.1973), this court held that there was no abuse of discretion where the trial court ordered the trial to continue with 11 jurors after one of the jurors became emotionally disabled because of his father-in-law's death. In Maciel v. State, 517 S.W.2d 789 (Tex.Cr.App.1975), the trial court ordered the trial to continue with 11 jurors after one juror suffered some sort of an attack and was taken to the emergency room of a hospital, where it was determined he had extremely high blood pressure. See also Johnson v. State, 525 S.W.2d 170 (Tex.Cr.App.1975).

Under the circumstances presented, we conclude the trial court did not abuse its discretion in the instant case. The ground of error is overruled.

Next, appellant complains that during voir dire examination of the jury panel the prosecutor was permitted to inform the panel that the State could not call the appellant as a witness and 'in general allowing the District Attorney to comment on the failure of the Defendant to testify.'

Appellant calls our attention to a portion of the examination where the prosecutor stated the appellant could subpoena and call witnesses in his behalf and could testify himself. A general objection was interposed and overruled. The prosecutor then stated that if the appellant did not testify the jury could not consider his failure to testify, but if he did testify the jury could pass on his credibility as any other witness.

In McCary v. State, 477 S.W.2d 624 (Tex.Cr.App.1972), and Hill v. State, 480 S.W.2d 670 (Tex.Cr.App.1972), we held that similar statements were not manifestly intended or were not of such character that the jury would naturally and necessarily take it to be a comment on the subsequent failure of the defendant to testify so as to offend the statute (Article 38.38, Vernon's Ann.C.C.P.) which prohibits comment on a defendant's failure to testify. It is well settled that for the statement to offend against the statute the language utilized must be considered from the jury standpoint. Further, the implication from the language used (having reference to the failure to testify) must be a necessary one.

Unlike Hill and McCary the appellant in the instant case testified in his own behalf rendering harmless any statements made by the prosecutor. We find no support in the record for appellant's assertion in his brief that such statements caused him to take the stand.

Further, the prosecutor's statement that if the appellant testified his credibility was to be judged as any other witness was a correct statement of the law and in accordance with the court's charge later given. See Lombardo v. State, 503 S.W.2d 780 (Tex.Cr.App.1974).

Appellant also complains that the court erred in permitting Sheriff Daniels to testify after he had been improperly excused after the rule had been invoked. The court sua sponte excused the Sheriff when the rule was invoked. Upon objection, the court stated the Sheriff was needed in attendance upon the court. When the Sheriff was called to testify at a separate hearing outside the hearing of the jury on the voluntariness of the confession, the appellant established that the Sheriff had not requested to be excused from the rule and had a bailiff in the courtroom, but when the court reiterated he desired the Sheriff in the courtroom, no further effort was made to establish what duties had been assigned the Sheriff or what conditions demanded his presence. There appears to be no showing of prejudice or abuse of discretion. See Perry v. State, 160 Tex.Cr.R. 8, 266 S.W.2d 171 (1954).

The rule is provided for in Article 36.03, Vernon's Ann.C.C.P. The object to be attained by placing witnesses under the rule is to prevent one witness from being influenced by the testimony of another. Brown v. State, 523 S.W.2d 238 (Tex.Cr.App.1975); Carlile v. State, 451 S.W.2d 511 (Tex.Cr.App.1970). The enforcement of the rule is within the discretion of the court. Article 36.04, Vernon's Ann.C.C.P. And it is in the discretion of the court to permit anyone to testify who has not been placed under the rule. See Article 36.04, supra, n. 7, and cases there cited.

Further, it is noted that the Sheriff solely testified before the jury to the fact that he had taken the appellant to the county attorney's office where appellant was warned of his rights and had given and signed a written confession. No other witness for the State testified to such matters. For this reason also there would appear to be no error. Landry v. State, 96 Tex.Cr.R. 350, 257 S.W. 561 (1924). See also Clary v. State, 68 Tex.Cr.R. 290, 150 S.W. 919 (1912). Cf. Moore v. State, 493 S.W.2d 844 (Tex.Cr.App.1973).

While for the above reasons no error is reflected, trial judges, in all fairness, should not sua sponte excuse peace officers from the rule without there being good cause therefor. See Brown v. State, supra. Peace officers are not entitled to be excused from the rule merely by reason of their position as peace officers. See Martinez v. State, 96 Tex.Cr.R. 138, 256 S.W. 289 (1923).

In two grounds of error appellant complains the court erred in permitting Chief Deputy Mike Strong to testify concerning evidence found in appellant's house while he was in jail and which search was conducted without warrant and without consent, and further complains of the introduction of .22 cal. shells, pictures taken by Strong and a diagram of the house made by Strong. In another ground of error appellant complains of the admission of certain conversations that Deputy Danny Cook testified he had with appellant after the appellant was under arrest. A short resume of the evidence is necessary to appraise these contentions.

At 11:38 p.m. on August 12, 1974, the Rusk County sheriff's dispatcher received a phone call from a person who identified himself as Armon Allen and stated, 'My wife killed herself,' and 'Send somebody out here.' He gave directions to the dispatcher, who sent Deputy Sheriff Cook to appellant's residence. Cook arrived along with the funeral home ambulance. Cook observed the appellant on the front porch. As he walked up appellant stated, 'My wife has done it this time,' and 'She has shot herself.' Cook saw a woman on the couch inside the house. Inside he found the deceased, Dorris Allen, slumped on the couch, a wound about her right eye and a finger shot off. He observed a .22 cal. rifle nearby. He found one shell hull eight feet from the deceased and another eighteen feet from the deceased. In the bedroom he found a box of .22 cal. shells. The rifle and shell hulls and shells were introduced without objection. When a diagram of the two rooms made by Cook was offered, the only objection was that it was inaccruate as it did not include...