Farris v. State

819 S.W.2d 490, 1990 Tex. Crim. App. LEXIS 197, 1990 WL 182415
CourtCourt of Criminal Appeals of Texas
DecidedNovember 28, 1990
Docket69659
StatusPublished
Cited by160 cases

This text of 819 S.W.2d 490 (Farris v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farris v. State, 819 S.W.2d 490, 1990 Tex. Crim. App. LEXIS 197, 1990 WL 182415 (Tex. 1990).

Opinions

OPINION

MILLER, Judge.

Appellant was convicted of the offense of murder which was elevated to capital murder because he murdered Carl Rosenbalm, Jr., a peace officer, while Ro-senbalm was acting in the lawful discharge of an official duty as a Tarrant County Deputy Sheriff. See V.T.C.A., Penal Code § 19.03(a)(1). After the jury answered the submitted special issues in the affirmative, see Art. 37.071, V.A.C.C.P., the trial judge assessed appellant the death sentence. Appeal to this Court is automatic. See Art. 37.071(h), V.A.C.C.P., Tex.R.App.Proc., Rule 40(b)(1). Finding no merit in appellant’s twelve points of error, we affirm.1

In his first point of error, appellant challenges the sufficiency of the evidence to corroborate the testimony of Vance Nation, an accomplice witness. See Art. 38.14, V.A.C.C.P. The record reflects that on the night of December 4, 1983, on an isolated stretch of road in Tarrant County, Deputy Carl Rosenbalm of the Tarrant County Sheriff’s Department was shot and killed by appellant. There were no eyewitnesses • to the crime, although two individuals, Vance Nation and Charles Louder, who testified at appellant’s trial, were evidently present when Rosenbalm was shot and killed. According to Nation’s testimony at trial, he had arranged to drive from his residence in Wichita Falls to meet appellant in Fort Worth for an illegal drug transaction, to exchange marihuana for amphetamine. When Nation and Louder arrived at a prearranged rendezvous point, appellant was already there. Louder parked on the shoulder of the roadway, a short distance directly behind appellant’s pickup truck. Nation then exited his vehicle, walked to and got inside of appellant’s vehicle, where they completed their drug deal. Before they had separated, their meeting was interrupted by Rosenbalm’s appearance on the scene. Nation testified that as he was leaving appellant to rejoin Louder, he noticed the head on approach of a marked police patrol car with its top lights flashing. Suddenly, the driver of the patrol car, who was identified as Rosen-balm, drove across the centerline and [494]*494stopped on the road, facing the wrong direction, adjacent to appellant’s vehicle. At this time, Nation and Louder panicked. Nation testified that because the radio in appellant’s vehicle was playing so loudly, and the patrol car’s spot light was shining so directly in his face, that he could neither see nor hear what happened next between appellant and Rosenbalm. Putting his vehicle in gear, Louder drove it directly forward. By this time, appellant’s vehicle had already left the scene and, as Louder drove through the place where it had been parked, and directly past the patrol car, he noticed Rosenbalm lying motionless on the ground. Louder and Nation both thought at first that Louder had driven his vehicle over Rosenbalm.

According to Nation, appellant later admitted to shooting Rosenbalm. Appellant confessed to his brother-in-law, Jimmy Daniels, that he had shot a policeman. Daniels testified at trial that appellant told him about the drug deal and about the appearance of Rosenbalm on the scene. Daniels went on to describe how, after Nation had returned to his vehicle, Rosen-balm got out of his patrol vehicle and demanded to know what was going on. At that point, according to Daniels, appellant fired several shots at Rosenbalm with a .357 Magnum pistol and then drove away. Through his rear view mirror, Daniels saw Rosenbalm on his hands and knees next to his patrol car, but did not learn until later that Rosenbalm had died as a result of a gunshot wound. Appellant also told Daniels that he had disposed of the murder weapon by throwing it from a pier into Marine Lake.

The evidence also established that Rosen-balm was wearing a bullet proof vest at the time of his death. Two .357 slugs struck his body, but only one was stopped by the vest. The other travelled through his left arm, entered his arm pit, and perforated both his heart and lungs, killing him within a few minutes. Although the medical examiner testified that the fatal shot was fired from a distance of three feet or more, the testimony of another forensic expert at least suggests that the shot might have been fired at much closer range. Moreover, other circumstances indicate that Ro-senbalm was struck with his own flashlight before he was killed.

Rosenbalm was found lying on the paved roadway where his car was parked, partially beneath the still open, driver’s side door. His service revolver, broken sunglasses, and two sets of handcuffs were scattered at a distance of up to 12 feet from where his body was found. Investigators later discovered pieces of glass on the hood of the patrol car that appeared to have come from his broken sunglasses. In the opinion of one expert witness, these circumstances were more consistent with a protracted struggle than with Rosenbalm’s having fallen where he was shot. Otherwise, the relative position of the officer’s body and of his vehicle were as described by the testimony of Nation and Daniels.

Overall, the crime scene was not well preserved. Local residents and officers from the Sheriff's department soon arrived in force. Investigators discovered that Ro-senbalm himself was in possession of marihuana at the time of his death. Whether Rosenbalm was in unlawful possession of the marihuana is not, however, conclusively shown in the record. This circumstance led to considerable dissension among officers at the scene, finally resulting in the disappearance of certain evidence, including the marihuana found in Rosenbalm’s patrol car, photographs of the vehicle’s interior, and plaster casts taken of certain tire tracks in the area. Eventually, at least one captain from the Tarrant County Sheriff’s Department, Johnny Prince, was indicted for alleged criminal activity in connection with these events. When called to testify at appellant’s trial, Prince “took the Fifth.”

Subsequent investigation of the case was largely inconclusive. Long after the killing, when appellant had become the focus of police investigation, Daniels took officers to an area where appellant had fired a number of shots from his .357 Magnum pistol about a year earlier. The officers recovered several slugs from a tree trunk. These bullets, however, were shown to have rifling marks different from those on the bullets taken from Rosenbalm’s body.

[495]*495However, because the rifling characteristics of a weapon are susceptible to some change with use, it is not certain that a different weapon was in fact used to kill Rosenbalm.

Finally, two expert divers trained in underwater investigation systematically searched Marina Lake for six hours each on two consecutive days in the area where, according to Daniels, appellant had thrown the murder weapon, but they were unable to find it.

Thus, the circumstantial and forensic evidence offered at trial not only failed to connect appellant with the killing of Rosenbalm, but also failed in nearly all material respects to confirm the testimony of Nation and Daniels. Accordingly, the jury’s verdict convicting appellant for the capital murder of Rosenbalm, see V.T.C.A., Penal Code § 19.03(a)(1), depended almost exclusively on the credibility of the testimony of Nation and Daniels.

As previously stated, appellant asserts in his first point of error that the evidence the State presented at his trial was insufficient to support his conviction because the testimony of Nation was not corroborated. We disagree. Since Nation was also indicted for Rosenbalm’s murder, he was an accomplice witness as a matter of law.

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Bluebook (online)
819 S.W.2d 490, 1990 Tex. Crim. App. LEXIS 197, 1990 WL 182415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farris-v-state-texcrimapp-1990.