Patterson v. State

• Citation: 598 S.W.2d 265
• Decision Date: 16 April 1980
• Docket Number: No. 60995,No. 3,60995,3
• Parties: Royce Colon PATTERSON, Appellant, v. The STATE of Texas, Appellee
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 265

598 S.W.2d 265

Royce Colon PATTERSON, Appellant, v. The STATE of Texas, Appellee.

No. 60995.

Court of Criminal Appeals of Texas, Panel No. 3.

April 16, 1980.

Ed Stapleton, Denton, Bill Kimble, San Angelo, for appellant.

Robert J. Glasgow, Dist. Atty., and Robert S. Lee, Asst. Dist. Atty., Stephenville, Robert Huttash, State's Atty., Austin, for the State.

Before ODOM, PHILLIPS and W. C. DAVIS, JJ.

OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for aggravated rape. Punishment was assessed by the jury at 75 years confinement. The sufficiency of the evidence is not challenged.

The record reflects that on April 6, 1978, the complaining witness, R______ J______ P______, was awakened about 2:00 a. m. when a man jumped on her back, and began repeatedly beating her on the head with a pipe. The assailant told the victim to shut up, and that he was going to kill her. The appellant tore a sheet, and bound her hands with strips, then covered her head with a pillow. The victim was raped three times. Dr. Jasbir Sing Ahluwalia testified that he treated the complaining witness at the emergency room of the hospital for multiple deep lacerations which were to the bone on her scalp. He testified that she was in shock due to loss of blood and neurogenic shock, caused by the pain of the injuries she received. The doctor testified that the victim would have died if she had not received immediate medical treatment. After treating the victim's head injuries, the doctor examined her and found live sperm, which indicated recent sexual intercourse. At trial, the complaining witness identified the appellant as the man who attacked her. She said that she had known him many years, as the appellant's mother lived across the street from her. Although she did not see the appellant's face, she recognized him because of his "tall slender figure," and his voice. She testified that the appellant had a speech impediment and that he slurred his words. The complaining witness' eight-year-old son testified that he woke up that night when he heard his mother screaming. He said that he went to her door, but his mother told him to get back in bed. The son identified the appellant as the man he saw leaving his mother's room that night. Officer Ronnie Meyers testified that the victim's bedroom looked like a "slaughterhouse," that there was blood covering the bed, floor, and walls. Meyers said that he went to the appellant's mother's house at 4:00 a. m. that night, and that he observed, while talking to appellant, that appellant appeared freshly bathed and his hair was damp.

In ground of error number one, the appellant contends that the trial court committed reversible error in denying appellant's special plea of double jeopardy. We disagree.

On May 22, 1978, pre-trial hearings were held and the jury was impaneled for the first trial. The next day, evidence was presented and the State rested at the end of the day. On the 24th of May, the charge was read to the jury, and at 12:25 the jury was sent to deliberate. The jury requested to break for lunch shortly thereafter, and the court was adjourned until 2:00. At 5:15, a note was received from the jury which stated that they were divided 7-5, and were unable to reach an agreement. The court sent a note to the jury to continue its deliberations. At 6:49 another note was received from the jury which stated that they were still divided 7-5 and were unable to reach an agreement. The court asked if there were any objections to the granting of a mistrial. The defense objected. The jury was brought in and the record reflects the following:

"THE COURT: Mrs. Span, are you the fore the forelady or foreman?

FORELADY: Yes.

THE COURT: I have your note that you're divided seven to five, I don't want any of you to say which way you're divided, but I have your note that you're divided seven to five, do you think that there is a possibility of reaching a verdict if you deliberate longer?

FORELADY: No, sir.

THE COURT: Let me ask the entire panel, how many of you think you might reach a verdict if you deliberated longer? Do any of you think you might?

JURY PANEL: No.

THE COURT: If there are any of you who think you might reach a verdict if you deliberated longer, would you raise your hand? Let the record show there are no hands. Let me ask you Mrs. Span, has it been seven to five all the way?

FORELADY: From the beginning.

THE COURT: From the beginning?

FORELADY: Yes, sir.

THE COURT: And that has not changed?

FORELADY: Not changed.

THE COURT: And you started your deliberations after you came back from eating lunch.

FORELADY: From lunch.

THE COURT: At approximately two o'clock, is that right?

FORELADY: That's right.

THE COURT: Of course, after we spend three days here, I would hope that we could have a verdict, but if we can't, we can't huh and considering the division, almost equal division let me ask the question that I asked previously, but another way. How many of you think you will not reach a verdict if you deliberate longer, would you raise your hands? How many of you think you will not reach a verdict if you stay longer? Okay. Let the record show there is (sic) eleven hands up. All right. I will declare a mistrial, and discharge the Jury."

Article 36.31, Vernon's Ann.C.C.P. provides:

"After the cause is submitted to the jury, it may be discharged when it cannot agree and both parties consent to its discharge; or the court may in its discretion discharge it where it has been kept together for such time as to render it altogether improbable that it can agree."

The rule is well settled that the exercise of discretion in declaring a mistrial is determined by the amount of time the jury deliberates considered in light of the nature of the case and the evidence. Beeman v. State, 533 S.W.2d 799 (Tex.Cr.App.1976); Brown v. State, 508 S.W.2d 91 (Tex.Cr.App.1974). In Brown v. State, supra, the Court stated that in order to determine whether a jury has been prematurely discharged, we must know some of the facts to indicate the amount and length of testimony the jury was called upon to consider in their deliberations, we must know the time consumed by the trial and then weigh this time element against the time that the jury deliberated prior to their discharge.

In Beeman v. State, supra, this Court reversed the defendant's conviction, holding that the trial court abused its discretion in declaring a mistrial and that the trial court should have sustained the defendant's plea of former jeopardy. In Beeman v. State, supra, the jury was out for two hours before being discharged by the court. The initial vote of the jury in Beeman v. State, supra, was 6-6, then 8-4, and when the jury was discharged, the vote was 10-2. Only the jury foreman was questioned concerning the deliberations, and the court declared a mistrial over the objections of both the State and the defendant.

In the case at hand, the presentation of the evidence took less than one day. The jury deliberated for over four hours. The jury was deadlocked 7-5 from the beginning and their positions did not change throughout their deliberations. Each juror was questioned to see if anyone thought there was a possibility of reaching a verdict. We find that the trial court did not abuse its discretion in discharging the jury. ¹ See Muniz v. State, 573 S.W.2d 792 (Tex.Cr.App.1978); Satterwhite v. State, 505 S.W.2d 870 (Tex.Cr.App.1974). The ground of error is overruled.

In ground of error number two, the appellant contends that the trial court erred in overruling his objection to the admission of hair samples taken from his body. At the trial, State's Exhibit 26, consisting of hairs taken from appellant's head and sideburn, and State's Exhibit 27, consisting of hair taken from appellant's chest, were introduced into evidence and compared with hair found at the scene of the crime. Appellant contends that the admission of this evidence taken without his consent violated his right to be free from unreasonable searches and seizures under the Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution.

In United States v. D'Amico, 408 F.2d 331 (2d Cir. 1969), the Second Circuit was confronted with this identical issue. The court held:

"Unquestionably the clipping of the few strands of appellant's hair by a federal agent constituted a 'seizure' that might conceivably be subject to the 'constraints of the Fourth Amendment,' (citations omitted) but the fact that the officer failed to obtain a search warrant before cutting off the hairs does not necessarily require that we hold that this 'seizure' was an unconstitutional one. Schmerber, supra ² relied on by appellant is inapposite. In Schmerber the Court held that certain official intrusions into an individual's person require a search warrant in order for the intrusions to be deemed reasonable and not violative of the Fourth Amendment unless the exigencies of the circumstances of a case justify the failure to obtain a search warrant in that case. This holding does not comprehend that all official intrusions into an individual's person require, in the absence of extenuating circumstances, a search warrant in order to be reasonable. Some official in-custody investigative techniques designed to uncover incriminating evidence from a person's body are such minor intrusions into or upon the 'integrity of an individual's person' that they are not, in the absence of a search warrant, unreasonable intrusions. (Footnote omitted) ' "The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable." United States v. Rabinowitz, 339 U.S. 56, 66, (70 S.Ct. 430, 94 L.Ed. 653).' Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967)."

The court concluded:

"We fail to see how the taking of several strands of appellant's hair from his head while the appellant was in custody was any more...