McCary v. State

• Decision Date: 23 February 1972
• Docket Number: No. 44565,44565
• Parties: Forrest Edward McCARY, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 624

477 S.W.2d 624

Forrest Edward McCARY, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 44565.

Court of Criminal Appeals of Texas.

Feb. 23, 1972.

Rehearing Denied April 5, 1972.

Melvyn Carson Bruder, Dallas (on appeal by appointment), for appellant.

Henry Wade, Dist. Atty., John B. Tolle and Harry J. Schulz, Jr., Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for possession of heroin where the punishment was assessed at twenty years by the court following a verdict of guilty.

The State's brief accurately summarizes the facts as follows:

'On November 27, 1968, State and Federal officers conducted a search of an apartment at 1615 Pennsylvania Avenue, Dallas, Texas, pursuant to a State search warrant. When Officer Hendry knocked on the front door, the officers heard a commotion inside the apartment. Being in fear that the people inside were either trying to escape or destroy evidence, the officers forced the door open and entered. Upon entry the officers found two men, C. E. Garrett and Henry Sneed. Besides finding alot of narcotic paraphernalia, the officers found 375 capsules of heroin and enough loose heroin to make another 600 capsules of heroin of the same grade.

'Approximately thirty minutes after initiating the search, officers heard a key being inserted in the front door. The officers jerked the door open and found the appellant standing alone at the doorway with an empty key ring in one of his hands. The key (State's Exhibit No. 6) was still in the door lock. At this point the appellant stepped back and with his left hand threw a clear vial away. The vial hit the balcony walkway railing, bounced back and came to rest near the appellant's left foot. Federal Agent Williams actually observed the vial in the appellant's left hand and the appellant throw it away. Further testimony proved that the vial (State's Exhibit No. 7) contained 15 capsules of heroin. Thereafter, the appellant was arrested and placed in jail.

'The appellant did not testify . . .'

In his first ground of error appellant complains of the trial court's action in (1) refusing to hold the search warrant affidavit invalid, in (2) failing to suppress fruits of the search because the officers forced their way into the apartment, and in (3) failing to charge the jury on the legality of the search pursuant to Article 38.23, Vernon's Ann.C.C.P. It is clear that the ground of error is multifarious and that the same does not comport with the requirements of Article 40.09, Section 9, V.A.C.C.P. Nothing is presented for review.

Further, we observe that the search warrant affidavit clearly meets the two-prong test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. The officers were thus legally on the premises in question by virtue of a valid search warrant when they saw the appellant discard the vial later shown to contain heroin. The vial was recovered from the floor where appellant had thrown the same and was not recovered as a result of a search of appellant's person. It was this vial and its contents upon which appellant's conviction was predicated.

Still further, we find no objection during the trial to the search on the ground the officers forced their way into the house. See Martinez v. State, 437 S.W.2d 842 (Tex.Cr.App.); Hall v. State, 450 S.W.2d 90 (Tex.Cr.App.). It is observed the officers knocked on the door, attempting to comply with Article 18.16 V.A.C.C.P., when they heard a commotion inside. Fearing that those inside were attempting to escape or destroy evidence, the officers entered the apartment and arrested Sneed and Garrett. Such action was not improper under the circumstances. See Articles 18.06 and 18.20, V.A.C.C.P. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726.

And we find no evidence raising an issue that would require a charge under Article 38.23, V.A.C.C.P.

Next, appellant contends the court erred in refusing to dismiss the jury panel after the prosecutor during the voir dire examination stated 'The defendant has a right to testify, but the law says that he does not have to testify.' The objection, coupled with a motion to dismiss the jury panel, was overruled. Thereafter, the prosecutor stated: 'In a case, the Defendant has a right to sit there mute and doesn't have to testify, the law says that he can and . . .' An objection was again interposed and overruled. The matter was not further pursued.

Appellant relies upon Article 38.08, V.A.C.C.P. and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 and Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, among other authorities. See also Article I, Sec. 10, Texas Constitution, Vernon's Ann.St.; Fifth Amendment, United States Constitution.

It is well settled that for statement to offend against the statute (Article 38.08, supra) the language utilized must be considered from the jury's standpoint and the implication that language used had reference to the accused's failure to testify must be a necessary one. Ramos v. State, 419 S.W.2d 359 (Tex.Cr.App.1967) and cases there cited. 'It is not sufficient that the language might be construed as an implied or indirect allusion thereto.' Richardson v. State, 172 Tex.Cr.R. 299, 356 S.W.2d 676 (1962).

In the instant case, unlike most of those relied upon by the appellant, the complained of statements were made during the voir dire examination of the jurors and not during jury argument after the conclusion of the testimony. The record does not reflect that appellant informed the court or the prosecutor that he would not testify in the case. No motion in limine was filed. Thus, the remarks were made at a time when State's counsel had no way of knowing whether the appellant would testify or not, see Deal v. State, 99 Tex.Cr.R. 385, 268 S.W. 746, reh. denied 99 Tex.Cr.R. 385, 269 S.W. 433 (1925); Locke v. State, 168 Tex.Cr.R. 507, 329 S.W.2d 873 (1960), and in connection with his effort to qualify the jurors and to exercise the State's peremptory challenges as well as those for cause. Cf. Wilkerson v. State, 119 Tex.Cr.R. 4, 45 S.W.2d 201 (1932).

While the prosecutor's statements were not complete statements of the law relating to an accused's failure to testify, the objections which interrupted such statements were not based on that fact but upon the fact that the prosecutor had mentioned it at all. No jury instruction or clarification from the court was sought. The motion urged was that the jury panel be dismissed.

We cannot conclude the language used was manifestly intended or was or such a character that the jury would naturally and necessarily take it to be a comment on the subsequent failure of the appellant to testify so as to offend the statute. Ramos v. State, supra.

The court did not err in refusing to dismiss the jury panel.

We observe that subsequently at the conclusion of the guilt stage of the trial the court favorably responded to appellant's request to excise from the court's prepared charge any instruction as to the failure of the appellant to testify in his own behalf. See Smith v. State, 455 S.W.2d 748, 754 (Tex.Cr.App.1970).

Appellant makes complaint of the court's action 'in sustaining the state's challenge for cause of a prospective juror.'

Only a portion of the voir dire examination is in the record before us. It appears that in response to questions about any interest in the outcome of a criminal case the prospective juror informed the attorneys her son-in-law was under indictment for possession of marijuana and that his trial was to be held the following week. After additional questions the prospective juror stated '. . . I would try to be a fair and impartial juror but I feel like that, even so, that these facts that are so close to my own family would probably influence me.' She was then excused over objection.

Article 35.16(a), Section 9, V.A.C.C.P. provides that either the State or the defendant may challenge for cause any prospective juror that '. . . has a bias or prejudice in favor of or against the defendant; . . .'

Article 35.21, V.A.C.C.P. provides that 'The court is the judge, after proper examination of the qualifications of a juror, and shall decide all challenges without delay and without argument thereupon.'

Under the circumstances we can perceive no abuse of discretion.

Appellant also complains that court failed to respond to his written objection that in violation of Article 36.14, V.A.C.C.P. the court commented on the weight of the evidence and invaded the province of the jury when the court charged the jury as follows:

'Now bearing in mind the foregoing definitions and instructions, if you...