Farrar v. State

• Decision Date: 16 February 1955
• Docket Number: No. 27231,27231
• Citation: Farrar v. State, 277 S.W.2d 114, 162 Tex.Crim. 136 (Tex. Crim. App. 1955)
• Parties: Carrol FARRAR, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 114

277 S.W.2d 114

162 Tex.Crim. 136

Carrol FARRAR, Appellant, v.The STATE of Texas, Appellee.

No. 27231.

Court of Criminal Appeals of Texas.

Feb. 16, 1955.

Rehearing Denied March 30, 1955.

John Cutler, Houston, Dee, Seals & Womack, by Woodrow Seals, Houston, for appellant.

Dan Walton, Dist. Atty., Eugene Brady, Jr., Asst. Dist. Atty., Houston, Wesley Dice, State's Atty., Austin, for the State.

BELCHER, Commissioner.

Appellant was convicted for the offense of murder with malice, and his punishment was assessed at death.

The state's testimony shows that Officer Tucker and Fritz Engelking, a Treasury Department employee, drove to George's Food Store between 7 and 8 P.M. and, as their automobile stopped, appellant, who was standing in front of the store, began firing a pistol at them.Officer Tucker returned the fire.Appellant ran back of the store and barricaded himself behind a Buick automobile parked about forty feet from the building and headed in the opposite direction.Appellant, while behind the automobile, fired his pistol toward the building where Tucker and other officers were located.

Other officers, including Officers Moon and Maddox, the deceased, arrived soon thereafter.Officer Tucker shot appellant with a shotgun and he fell to the ground in front of the Buick.Deputy Sheriff Randio approached the Buick and found Officer Maddox on the ground behind the Buick with a bullet wound over the left eye.

Deputy Sheriff Randio further testified that appellant was lying on the ground in front of the Buick with his right hand over a gun on the ground, and that he moved appellant's hand and took the gun which was a .38 Colt Super automatic, bearing SerialNo. 10276.

Officer Moon testified that when he and Officer Maddox arrived at the scene he went to the front of the Buick and appellant appeared, stuck a gun in his face, and said 'Oh, yes, now you get it;' that appellant shot him in the right arm.He further testified that he last saw Officer Maddox about eight feet behind the Buick and that appellant was then firing in the direction of Maddox.

Mrs. Verdell Pitts, who was across the street from the store, testified that she could see a man in front of an automobile behind the store firing a gun; that she saw the officer running between the automobile and the store; that the man in front of the automobile fired toward the officer and the officer fell at the rear of the automobile; and that after the shooting she saw the officer that was shot on the ground, and the other man, who resembled appellant, on the ground in front of the automobile.

It was shown that Officer Maddox's death was caused by the gun shot wound in the head.

Witnesses Rymer and Queen, Firearms experts of the Texas Department of Public Safety and Houston Police Department, testified that their examination showed that the bullet, which was identified as having been removed from the head of the deceased, had been fired from the gun which was identified as the one removed from underneath the hand of the appellant immediately after the deceased was shot.

Appellant did not testify and offered no evidence in his own behalf.

Appellant contends that the indictment is void because the grand jury which presented it was impaneled on the first day of a new term of Criminal District CourtNo. 2 of Harris County while a hold-over grand jury from a previous term in Criminal District CourtNo. 3 of Harris County was, under Art. 338a, Vernon's Ann.C.C.P., continuing in session.

This contention is based upon the assertion that there is no authority for two grand juries to be in session in the same county at the same time.

The Legislature has provided that a grand jury may be convened on the first or any subsequent day of the term of a district court.Art. 344, Vernon's Ann.C.C.P.

Art. 338a, Vernon's Ann.C.C.P., provides that in certain counties the judge of the district court may, within the term, under certain prescribed conditions, extend the period of time for which a grand jury shall sit after the expiration of the term for which it was impaneled for the purpose of concluding the investigation of matters then before it.

We know of no provision in our constitution which would prevent the impaneling of a grand jury in Criminal District CourtNo. 2 while the grand jury in Criminal District CourtNo. 3 was sitting under the authority of Art. 338a, Vernon's Ann.C.C.P.

By Bill of ExceptionNo. 1, appellant complains of the overruling of his motion to quash the venire.Such motion alleged that the prospective veniremen saw appellant in the hallway of the courthouse in chains and handcuffs, thereby prejudicing them against him; and further alleged that one of the veniremen, Fred P. Maddox, Sr., was the father of the deceased and, in all probability, made known his identity to said jurors, which communication would tend to prejudice them against appellant.

The court heard testimony on the motion.It was shown that appellant had on handcuffs and was in chains when brought to the courthouse, but they were removed before he was taken to the courtroom.

The court qualified the bill by certifying that each venireman stated, while being examined as a prospective juror, that he had not observed appellant in chains or handcuffs.The court further certified that venireman Fred P. Maddox, Sr., was excused before the court officially opened and there was no evidence that he had communicated his relationship to the deceased to other veniremen.

This bill does not show, nor does the record show, that any member of the jury saw appellant handcuffed and in chains, or that any member knew that the father of the deceased was on the venire, and therefore no error is shown.

By Bill of ExceptionNo. 2, appellant complains that immediately after the verdict was returned and the jurors had been discharged two of the state's attorneys and members of said jury returned to the jury room and closed the door.He also complains of the refusal of the foreman and two other members of the jury to talk to appellant's attorneys because such action deprived them of the right to ascertain the possibility of any jury misconduct.

We know of no statute which this conduct violates and the bill shows no injury to appellant as a result of such action.

Appellant urges error in the opening argument to the jury by the assistant district attorney, when he stated: 'Officer Maddox had come out here to arrest the defendant for a breach of the peace.'However, appellant's objection thereto was promptly sustained by the court, and the jury was instructed not to consider said statement for any purpose.We are of the opinion that no reversible error is here reflected.

By Bill of ExceptionNo. 5, appellant complains of the taking of a picture of the jury by a newspaper photographer, and, in his brief, further complains of the suggestion by the court that a picture be taken of the jury and informing them that the court was going to have a copy sent to them.

This bill was qualifed by the court and filed, to which appellant states in his brief he excepted, and has filed direct into this court an exception to the court's qualification and a purported bystander's bill.The exception not having been called to the trial court's attention, the bill will be considered as qualified.Wall v. State, 156 Tex.Cr.R. 239, 240 S.W.2d 763;Miers v. State, 157 Tex.Cr.R. 572, 251 S.W.2d 404;Bonewald v. State, 157 Tex.Cr.R. 521, 251 S.W.2d 255;Ferguson v. State, Tex.Cr.App., 261 S.W.2d 721;McKelvey v. State, Tex.Cr.App., 263 S.W.2d 774;Alvarez v. State, Tex.Cr.App., 264 S.W.2d 110.

The bill shows that at the time the jury was returned to the jury box during their...