Chamberlain v. State

• Decision Date: 25 March 1970
• Docket Number: No. 42500,42500
• Citation: 453 S.W.2d 490
• Parties: Russell Everett CHAMBERLAIN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 490

453 S.W.2d 490

Russell Everett CHAMBERLAIN, Appellant, v. The STATE of Texas, Appellee.

No. 42500.

Court of Criminal Appeals of Texas.

March 25, 1970.

Rehearing Denied May 27, 1970.

Grady Hight, Fort Worth, for appellant.

Frank Coffey, Dist. Atty., Rufus J. Adcock, Ronald W. Quillin and Truman Power, Asst. Dist. Attys., Fort Worth, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

The conviction is for robbery by assault; the punishment, sixty years.

The sufficiency of the evidence is not challenged.

Appellant contends in the first ground of error that the trial court erred in refusing to postpone the trial, because Charles E. Hardin, a co-indictee, had escaped and had been shot and returned to custody and this had caused publicity. In the alternative he asked the court to instruct the prosecution not to mention the name of Charles E. Hardin.

Appellant introduced three articles that had appeared in the Fort Worth newspapers relating to Hardin's escape. Appellant's name did not appear in the articles. There is no showing any of the prospective jurors had read or were prejudiced by the articles. No abuse of discretion of the trial court for refusing a postponement is shown.

During the trial there was an abundance of testimony that Hardin as well as appellant participated in the alleged robbery of the A & P Store. Such testimony was admissible against appellant. There was no error for refusing to instruct the prosecuting attorneys to refrain from mentioning the name of Hardin. The first ground of error is overruled.

In his second ground of error, it is contended that the trial court erred in refusing to disqualify the prospective juror Reynolds when he answered on voir dire examination that he would be prejudiced against appellant 'if proof of a robbery existed.'

The prospective juror was asked '(i)f you would be prejudiced against this man if the testimony disclosed that a serious crime such as the crime of robbery has occurred? * * * ' His answer was, 'Not against him personally, I'd be against the crime, the crime itself, you know.' In response to questions by the court be further testified that he had no bias or prejudice against appellant but his prejudice was against the crime itself.

It is not error to refuse to disqualify a prospective juror who is prejudiced against the commission of a crime. Wilson v. State, 436 S.W.2d 542. ¹

The third ground of error is based on the fact that the trial judge would not disqualify himself, because appellant had filed a civil case against him and one of the prosecutors for some $250,000.

After the indictment was read, appellant asked the trial judge to disqualify himself because of the civil action pending against him. The petition alleged that the judge and one of the prosecutors had damaged appellant '(b)y using slander statements and illegal incarceration and by a contrived conviction.' He alleged that the prosecutor used inflammatory remarks in the closing argument of a (previous) trial, and that the court granted a mistrial. General allegations were made that the court had denied his constitutional and statutory rights.

After the petition was introduced, the following occurred:

'MR. HIGHT: (Counsel for appellant) I believe that is the extent of our Motion, that because the Court is personally involved with a financial interest with this same man, we'd like the Court to refuse--

'THE COURT: Also let the record show that at the same time this Defendant sued me, one of the other Defendants sued me too, and I understand they had one man in jail that was writing petitions for all the other men who wanted to sue a Judge.'

The judge stated: 'And with reference to this suit, I doubt whether it even alleges a cause of action, and the Court is not particularly disturbed by it,' and he then denied the motion to disqualify himself.

In Ex parte Largent, 144 Tex.Cr.R. 592, 162 S.W.2d 419, this Court stated:

'Under the Constitution (Art. V, Sec. 11) and laws of this state (Art. 552, C.C.P.), a judge is disqualified from sitting or acting as such in a criminal case when: (a) He is interested in the case; (b) he has been counsel for the State or accused; (c) he is related to accused or injured party within the third degree. These grounds of disqualification are exclusive. Berry v. State, 83 Tex.Cr.R. 210, 203 S.W. 901; Williams v. State, 126 Tex.Cr.R. 42, 69 S.W.2d 759.

'The term 'interested in the case' means a direct interest in the case or matter to be adjudicated so that the result must, necessarily, affect his personal or pecuniary loss or gain. Ex parte Kelly, 111 Tex.Cr.R. 54, 10 S.W.2d 728; Hubbard v. Hamilton County, 113 Tex. 547, 261 S.W. 990; Richardson v. State, 109 Tex.Cr.R. 148, 4 S.W.2d 79; Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749, 50 A.L.R. 1243.'

Here appellant has not shown any bias or prejudice on the part of the trial judge nor has he alleged any facts that would show any pecuniary interest of the judge on the outcome of the present case. If the mere filing of a civil action against the judge presiding at a criminal case would disqualify him, then any judge would be subject to disqualification at the whim of a defendant. Such practice, if allowed, could delay or prevent the trial of a case.

No error is shown; the third ground of error is overruled.

In the fourth ground of error, appellant complains that the overruling of a motion for mistrial was error, after he got into a scuffle with the sheriff's deputies in the presence of the jury.

During the trial, the State asked that the co-indictee Hardin be brought in the courtroom for identification purposes. As Hardin was brought in, he resisted and fought with the officers, and the appellant joined the scuffle and began to kick the officers. After order had been restored, appellant requested a mistrial on the grounds of the scuffle or fight in the courtroom. This contention, if upheld, would permit a defendant to take advantage of his own misconduct, and the attempted administration of justice would be reduced to a mockery.

If a witness or a defendant is not satisfied with the rules or if he thinks they are unfair and unconstitutional, he has a right to test them in the appellee courts and this does not include the right to fight the officers in the courtroom or otherwise disrupt the proceedings. The rules of procedure, like our substantive law, apply to everyone; those who violate them should know that they must suffer the consequences, especially those who would like to disrupt the orderly administration of justice and eventually destroy our judicial system.

If adopted, appellant's contention would be a step in that direction, and it is overruled.

In the fifth ground of error, appellant contends that evidence seized from him at the time of his arrest was inadmissible, because there was no offense being committed and no probable cause for the arrest, and that the evidence later seized from the co-indictee Hardin was inadmissible, because appellant was not present at the time of Hardin's arrest.

The record reflects that appellant was arrested in a 1963 model red and white Ford automobile with a large U-haul...