Cain v. State, 52217

Citation549 S.W.2d 707
Decision Date09 March 1977
Docket NumberNo. 52217,52217
PartiesDarrell L. CAIN, Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for murder with malice under the former Penal Code, wherein the jury assessed punishment at five (5) years' confinement in the Department of Corrections.

The case involved the shooting of a handcuffed 12 year old boy by a Dallas city policeman. The cause was tried in Travis County following a change of venue from Dallas County.

Appellant's grounds of error can be divided into three categories. The first category involves the exclusion of evidence, including among other things, statements by the appellant under the influence of a truth serum which presents a question of first impression in this State. The second category involves objections made to the court's charge, and the third category relates to the jury arguments of the prosecutors. We overrule all grounds of error and affirm the conviction.

While the sufficiency of the evidence is not challenged, a brief recitation of the facts is necessary to put the discussion of the grounds of error in proper perspective.

It appears from the record that Dallas police officer Roy Arnold was on patrol about 2:30 a. m. on July 24, 1973, when he saw two individuals behind a Fina service station on Cedar Springs Road whom he recognized as the Rodriguez brothers. He broadcast a description and gave their home address, which he knew from past contact with the brothers.

Arnold arrived at the brothers' home which was about four blocks from the station. The appellant Cain, also a Dallas police officer, arrived in a separate vehicle. The two officers then entered the house and arrested the two Rodriguez brothers.

David Rodriguez, Jr., who was 13 years old at the time, testified he arrived home after 10 p. m. on July 23, 1976, where he lived with his brother Santos and his 80 year old grandfather. He stated his grandfather was asleep in the living room and he went to bed in the bedroom, and later heard his brother come into the room and go to bed. He related that in the early morning hours they were awakened by two uniformed police officers, Arnold and the appellant, who handcuffed them behind their backs and told them they were under arrest. They were placed in a patrol car with the deceased, Santos Rodriguez, in the front with Arnold and David in the rear seat with the appellant. They were then taken to the Fina service station. Other officers were at the scene. David related Arnold asked Santos if anybody else had been with them at the station and Santos replied they had not been at the station earlier. David related the appellant Cain took out his pistol, opened the cylinder and twirled it. David could see bullets in chambers of the cylinder and saw no empty chambers. Appellant then shut the cylinder and aimed it at Santos' head. David observed no attempt to unload the pistol. Appellant told Santos to tell them if he and his brother had burglarized the service station. When Santos denied the burglary, appellant clicked the gun, stated the pistol had a bullet in it and told Santos to tell the truth. Appellant then clicked the gun and it fired, striking the still handcuffed deceased, Santos Rodriguez, in the head. Appellant jumped out of the patrol vehicle and stated, "Oh, my God."

Dallas Police Officer Jerry Foster stated he was patrolling on July 24, 1973 about 2:30 a. m. when in response to a police broadcast he went to a Fina service station. Upon arrival, he found a rear window broken out, a desk drawer open and a cigarette machine pried open. A little later Officer Arnold's vehicle arrived with the appellant Cain and the two Rodriguez brothers. Foster related he yelled to Arnold that he had received information after arriving at the scene that a third person had been involved in the burglary. Foster then walked over to Arnold's vehicle and laid his arm on the door just as a shot rang out. Foster saw the deceased's head fall down with blood coming out the side. Appellant screamed and jumped out of the car, stating, "My God, My God, What have I done, I didn't mean to do it." Foster then took appellant's pistol away from him 8 to 10 seconds after the shot was fired and 4 or 5 seconds after the appellant exited the car. Foster did not see the appellant open or reload the pistol. When the pistol was unloaded, there were five live rounds and one empty cartridge. The deceased's pulse was checked and an ambulance was called.

Dr. Vincent Di Maio performed the autopsy on the deceased and testified a bullet penetrated the brain causing death. The bullet was removed from the brain. Firearms examiner Allan Jones testified he received the bullet from Dr. Di Maio and performed ballistics tests and expressed the opinion the fatal bullet had been fired from appellant's pistol.

Officer Fred Jenkins testified he had dusted for fingerprints at the service station involved and none of the prints recovered were those of the Rodriguez brothers.

Appellant, testifying in his own behalf, related he went to the Rodriguez brothers' home and assisted Officer Arnold in arresting them, and rode with Arnold to the Fina service station. When Santos denied the burglary to Arnold, appellant stated he said, "I will make him tell the truth." Appellant stated he then stuck his pistol down between his legs and unloaded it with the removed bullets making some noise hitting together. He placed the bullets between his legs, glanced at the cylinder and saw no bullets. He then pointed the gun at the deceased, told him to tell the truth, and pulled the trigger. The pistol just clicked. He again told the deceased to tell the truth and there was a bullet in the gun. He then pulled the trigger and the gun went off. He jumped from the car, screaming and crying. He stated, however, that he picked up the removed bullets from his lap before leaving the car and reloaded the pistol before it was taken from him. He admitted that the interrogation of a 12 year old at gunpoint was not proper police practice, and he didn't know why he had done it, but he had no intention of killing the boy, that a bullet evidently hung when being ejected and he did not know that any bullets remained in the pistol, that it was accidental that a bullet remained in the pistol.

Initially we shall consider appellant's contention that the trial court erred in excluding Dr. John Holbrook's testimony as to the results of a narcoanalysis examination of the appellant.

When the exclusion occurred, the appellant perfected a bill of exception. In the jury's absence Dr. Holbrook, who was stipulated to be a qualified psychiatrist, testified that amytal sodium is the drug most frequently used in the so-called truth serum test and is used in conjunction with either an amphetamine or adrenalin, which is a central nervous system stimulant; that this mixture of drugs is traditionally and classically used in the amytal interview, a tool and adjunct of psychiatric practice. He related its use "induces a mild state of hypnosis called narcohypnosis, and puts the individual in a completely relaxed physiological and mental condition, normally." It "primarily makes them more amenable to questioning."

Dr. Holbrook related that two days after the alleged offense he had administered sodium amytal to the appellant and the drug appeared to work on the appellant, who was simultaneously connected to a polygraph machine which measured respiration, blood pressure, heart rate and skin response. The doctor then stated that after the appellant appeared under the influence of the drug he was asked questions by a trained polygrapher, Ray Jones, in the doctor's presence. Dr. Holbrook related that appellant answered that he had visually checked to see if the pistol was empty, and believed he had removed all bullets before pointing it at the deceased, that he did not intentionally shoot the deceased, that he accidentally shot the deceased, and that he had reloaded the pistol after the shooting. Dr. Holbrook testified in his opinion that these answers were truthful from the appellant's standpoint and "I am pretty sure he answered in terms of what he believed to be the truth. . . ."

In describing the test used by psychiatrists, the doctor stated, " . . . I don't know that the truth is always what one gets in an amytal interview, even more accurately you arrive at a truth that is understood to be the truth by the person who is taking the drug. Of course, as you know, truth in itself is very difficult to determine and assess."

Appellant cites no authority which has permitted the admissibility of a "truth serum" examination. Our research reflects that the results of such test occupy much the same position as the results of lie detector or polygraph and no court has yet recognized the admissibility of the results of such truth serum tests, at least for the purpose of proving the truth of the matter asserted. 29 Am.Jur.2d, § 832, n. 9; 41 A.L.R.3rd 1369, § 4(b), Truth Test Admissibility of Results; Scientific Evidence in Criminal Cases, Ch. 15, pp. 565-571 (Moenssens, Moses, Inbau).

The great weight of authority in this country regards results of truth serum tests as inadmissible inasmuch as they have not yet attained scientific acceptance as reliable and accurate means of ascertaining truth or deception. See State v. Linn, 93 Idaho 430, 462 P.2d 729 (1969); State v. White, 60 Wash.2d 551, 374 P.2d 942 (1962); Knight v. State, 97 So.2d 115 (Fla.1957); People v. Ford, 304 N.Y. 679, 107...

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    • United States
    • Supreme Court of Georgia
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    ...of ascertaining whether a person is telling the truth. See e.g., 41 A.L.R.3rd 1369; 29 Am.Jur.2d 923, Evidence § 831; Cain v. State, 549 S.W.2d 707 (Tex.Cr.App.1977); State v. Linn, 93 Idaho 430, 462 P.2d 729 (1969); Flurry v. State, 52 Ala.App. 64, 289 So.2d 632 (1973); Christopher v. Stat......
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    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 2 - 2017 Contents
    • August 17, 2017
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