Clark v. State

• Decision Date: 05 January 1966
• Docket Number: No. 38613,38613
• Citation: 398 S.W.2d 763
• Parties: Thomas CLARK, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 763

398 S.W.2d 763

Thomas CLARK, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 38613.

Court of Criminal Appeals of Texas.

Jan. 5, 1966.

Rehearing Denied Feb. 23, 1966.

Roy Engelke, La Marque, for appellant.

Jules Damiani, Jr., Dist. Atty., Raymond E. Magee and Ronald L. Wilson, Asst. Dist. Attys., Galveston, and Leon B. Douglas, State's Atty., Austin, for the State.

McDONALD, Presiding Judge.

The offense is unlawful sale of a narcotic drug, marijuana; the punishment is life imprisonment.

The evidence reveals that Agent R. B. Merriweather of the Federal Bureau of Narcotics, while acting in an undercover capacity, first met appellant on May 28, 1964, and talked with him on several occasions during the following six weeks. On July 8, Agent Merriweather met two other Federal Bureau of Narcotics agents at the Houston branch office of that government agency at about 7 p. m. and proceeded to Galveston County where they conferred with two officers from the La Marque Police Department. At about 8:30 p. m. Agent Merriweather left La Marque in an unmarked government vehicle and drove alone into the city of Galveston. The other federal agents and the two policemen followed in another vehicle, which they parked, as previously planned, in an alleyway near the Galveston train station. Agent Merriweather meanwhile proceeded to an apartment at 21-G Palm Terrace where appellant admitted him and led him into an upstairs bedroom. Appellant closed the door and drew the window shades closed, then showed the agent some marijuana cigarettes. Agent Merriweather told appellant that he wanted heroin, but consented to buy these cigarettes, after appellant informed him that the marijuana was 'all he had' because he was short of money and had been unable to locate his source of supply for heroin. The agent then gave appellant a $5 bill in exchange for five cigarettes. He then rendezvoused with the other four officers and returned to the La Marque Police Station, where the contents of the cigarettes was examined by Agents Merriweather and W. T. Benedict, Jr. and Police Officers Walter Feigle and Jerry Larson. Each of these men was called as a witness for the State, and each testified that, in his opinion, the cigarettes contained marijuana.

K. B. Anderson, Jr., another witness for the State, testified that he was a chemist employed for the past 13 years by the Alcohol and Tobacco Tax Division of the United States Treasury Department, and that his job consisted of analyzing alcoholic products, moonshine mash, and narcotics. He stated that he had analyzed the contents of the five cigarettes purchased from appellant, and identified the substance therein as marijuana.

It was properly shown that appellant had been previously convicted for the unlawful sale of marijuana, and that this conviction became final prior to the commission of the offense for which he was then being tried.

Appellant called no witnesses to contradict the evidence adduced by the State, and this evidence is sufficient to sustain the jury's finding of guilty as to the primary offense and for the purpose of enhancement under Section 23 of Article 725b, Vernon's Ann.P.C.

On Monday morning, December 7, 1964, the day before appellant's trial began, appellant was brought into the courtroom handcuffed to another prisoner named Eatherly. Appellant was wearing prison attire, consisting of a white 'jumper' with a large black 'P' on the back, white duck trousers which also had the letter 'P' stenciled or painted upon them, and rubber sandals which left his feet exposed. In the courtroom at this time was at least part of the jury panel from which the jury for appellant's trial was later selected. The other prisoner, Eatherly, was found, at a sanity hearing that afternoon, to be insane by a jury selected from this same jury panel. Four of the members of the jury at Eatherly's trial were also jurors in appellant's trial. Both prisoners were taken through the courtroom to the 'lock-up' situated adjacent to the courtroom, where their handcuffs were removed. When the Eatherly sanity trial was recessed for lunch that day, appellant was brought from the 'lock-up' into the courtroom, handcuffed to Eatherly, and taken from the courtroom in the presence of at least some of the members of the sanity trial jury.

Prior to the empaneling of the jury for appellant's trial, appellant filed a motion to quash the jury panel on the grounds that these transactions, wherein appellant was led through the courtroom clad in prison clothing and handcuffed to another prisoner in the view of members of the jury panel, seriously impaired appellant's right to presumption of innocence.

On the morning of December 8 a hearing was held on appellant's motion after which the motion was overruled. Afterwards, a jury was selected, empaneled, and sworn. Appellant was dressed in civilian clothes of his own choice. This jury found appellant guilty as charged, and sentenced him to the maximum punishment allowed by law.

Appellant's motion for new trial, at which he again raised this issue supported by the affidavit of one juror, was also overruled, and appellant now contends that the trial court's action in overruling each of these motions constitutes reversible error.

This Court has long condemned the practice of bringing an accused into the courtroom or into the view of the jury or jury panel while handcuffed. Mouton v. State, 155 Tex.Cr.R. 450, 235 S.W.2d 645; Gray v. State, 99 Tex.Cr.R. 305, 268 S.W. 941; Powell v. State, 50 Tex.Cr.R. 592, 99 S.W. 1005. When the prospective jurors were being examined, appellant and his counsel were no doubt aware that some of the panel had been in the courtroom the previous morning when appellant was brought in. It is not shown that all of the jury panel witnessed appellant when he was handcuffed and clad in prison clothing. Through voir dire examination and challenges, appellant might have eliminated from the jury all those who had witnessed the events of the preceding day. He has failed to show that he was forced to accept a juror who was prejudiced. Hardy v. State, 161 Tex.Cr.R. 637, 279 S.W.2d 345; Burks v. State, 50 Tex.Cr.R. 47, 94 S.W. 1040; also see annotation at 76 A.L.R.2d 678.

There is no indication that appellant was forced to appear under similar degrading and prejudicial circumstances after the selection of the jury was completed. Under these facts, we find no error in the trial court's action in overruling appellant's motions.

Eight of appellant's 17 points of error are concerned with the issues of entrapment and accomplice testimony. Appellant contends that the trial court erred in overruling his motion to disregard Agent Merriweather's testimony and certain State's exhibits, because he contends that Merriweather was an accomplice and his testimony was uncorroborated, and also that the evidence was obtained by entrapment. The trial court also refused appellant's requested instructions on the law of entrapment and accomplice testimony.

It is uncontradicted that appellant made an unsolicited offer to sell narcotics to Merriweather shortly after they met. On cross-examination, the agent testified as follows:

Q: 'Mr. Merriweather, prior to your obtaining...