Parker v. State
| Decision Date | 29 April 1970 |
| Docket Number | No. 42778,42778 |
| Citation | 457 S.W.2d 638 |
| Parties | J. Loyd PARKER, Jr., Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Robert B. Billings, Dallas, for appellant.
Malcolm Dade, Special Prosecutor, Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.
The offense is murder; the punishment, 10 years.
This is the same appellant who was before this Court is a habeas corpus proceeding in Ex parte Parker, Tex.Cr.App., 370 S.W.2d 882. After the rendition of such opinion, appellant was committed to the State Hospital for the Mentally Ill at Rusk, Texas, and some six years later the authorities at Rusk found that he had regained his sanity. He was returned to Fort Worth where a jury found him sane and capable of assisting his counsel in his defense. This trial followed.
It is contended that the evidence is insufficient to sustain the conviction, and further that the testimony upon which the state relied for conviction was obviously weak and the record affirmatively reflects that there was testimony available to the state which would have thrown additional light on the facts, which the state did not introduce or satisfactorily account for its failure to do so, requiring this Court to treat the case as one evidencing a reasonable doubt as to the sufficiency of the evidence to support the conviction. We had occasion to discuss his last contention in our recent case of Ysasaga v. State, Tex.Cr.App., 444 S.W.2d 305. With this two pronged attack in mind, we will discuss the evidence.
A long time Mexican American family retainer Morales, testified that on the morning of the homicide, while working as a gardener, he heard two guns shots from within the house and moments later appellant left the house buttoning his coat, entered his Cadillac, and drove away. As soon as he had left, Morales went to the window from which point he could see deceased lying prone on the kitchen floor. The police were summoned, entry into the house was forced, and it was discovered that deceased had been shot in the back three times. He died immediately. There were no other occupants of the house. The bullets taken from the deceased's body and one found outside were shown to be from a .38 caliber pistol which was either a Smith and Wesson or an I.N.A. weapon.
It was further shown that someone bought a .38 caliber Smith and Wesson pistol from a local store giving in payment therefor a check signed J. Loyd Parker, 69 Westover, Fort Worth, Texas. It was shown that appellant resided at such address, and the check was introduced in evidence.
Appellant did not testify or offer any evidence in his own behalf.
The above is a succinct summary of this voluminous record.
In argument, appellant contends that the state's failure to call an employee of the bank to identify the check, and the failure of the officers to take fingerprints at the scene brings this case within the rule discussed in Ramirez v. State, 163 Tex.Cr.R. 109, 289 S.W.2d 251, and later in Ysasaga v. State, supra. With this we do not agree. In each case, there were witnesses available to the state, who were not called, who could have shed light on a vital fact necessary to prove the state's case. In the case at bar, Morales was shown to be the only person in the vicinity of the house at the time of the shooting, and no question was raised as to appellant's signature to the check in question, which was accepted for deposit at the bank. It was not incumbent upon the state to prove that ill will existed between the appellant and deceased, his father. It therefore follows that this is not a weak circumstantial evidence case in which the state was under the obligation of presenting witnesses who might have aided their case.
Appellant's third ground of error is that the Judge who sat at his trial had been counsel for the state. At most, it was shown that the Honorable J. E. Winters, who had been an assistant district attorney at the time of the commission of the offense, had authorized the excuse of certain jurors called for the week in this jury wheel county prior to the call of this case before the Honorable Byron Matthews who examined the jury as to their qualifications and actually tried the case. Though not cited, the nearest case to the one at bar is Taylor v. State, 81 Tex.Cr.R. 359, 195 S.W. 1147. There the judge determined the number of veniremen who should be called for Taylor's case alone. Here approximately 500 people were selected from the jury wheel to serve in all the courts during the week appellant was tried and the persons in charge of the central jury room, acting under the authority of Judge Winters, excused certain prospective jurors who had legal excuses. It therefore follows that Judge Winters did not 'try the case' as is defined in the early case of Cock v. State, 8 Tex.App. 659.
It is next contended that the Honorable Fred Fick was disqualified from representing appellant under the terms of Article 2.08, Vernon's Ann.C.C.P., because he had been an Assistant District Attorney of Tarrant County at the time of the homicide. This question is raised for the first time on appeal. It was not shown that Fick had been 'of counsel for the State' in appellant's case. At most, it was shown that Fick was present at one time when appellant was being questioned after his arrest and his name does appear as counsel for the state in the bond hearing before this Court in 1963. Had the state moved to disqualify Fick prior to trial as was done in King v. State, 104 Tex.Cr.R. 583, 286 S.W. 231, another question would have been presented. 1 Here Fick was employed to represent appellant, and no question as to his qualification was raised until after trial. Hence, it comes too late.
Appellant's application for credit for time served in the state hospital is not before us as it was not shown to have been presented to the trial court. See Article 46.02, Sec. 10, V.A.C.C.P. This is appellant's first conviction for this offense, and the rule set forth in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, has no application.
Appellant next contends that the court erred in failing to permit him to qualify the jury on the question of whether or not they should grant probation in the event of conviction. The record reflects that the jury had been qualified for service before any application was filed.
The next contention of appellant is that the court erred...
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