Lundy v. State

OPINION

This is an appeal from a conviction of robbery by assault; punishment enhanced under the provisions of Article 63, Vernon's Ann.P.C., life.

Appellant contends that evidence is insufficient to support the conviction. The record reflects that one Charles Hopkins, in the early morning hours of January 19, 1970, brought his car to a stop at a red light on Pierce Avenue in Houston. While stopped at the red light, four people approached his car, one of whom, identified by Hopkins as appellant, got into the car and placed a gun to Hopkins' head. Appellant's other companions got into the car, and appellant demanded that Hopkins give him all his money. After he gave him his billfold, the appellant demanded the rest of his money and when Hopkins responded that he did not have any more, one of appellant's companions hit him with a pistol. The victim was driven around about five minutes before he was pushed out into a ditch, and appellant and the others departed in his car. Hopkins walked to a service station, where he called the police. Upon the arrival of the officers, a report came over the police radio that a car answering the description of the one taken from the victim had been involved in a wreck. The police car went to the scene of the wreck, where it was determined that one of the cars involved belonged to the victim. Hopkins testified that he saw appellant in a police car at the scene of the accident. We find the evidence sufficient to support the conviction of robbery by assault. See Smith v. State, Tex.Cr.App., 465 S.W.2d 766; Mauldin v. State, Tex.Cr.App., 463 S.W.2d 10.

Appellant complains of his retained trial counsel's failure to investigate and present a defense of alibi. He contends such failure constituted denial of effective assistance of counsel and an abuse of due process of law.

Appellant urges matters contained in bills of exception in support of his position. The record reflects that notice of appeal was given on October 15, 1970. The motion for extension of time to file the bills of exceptions was filed on February 11, 1971, and the order granting same was signed on the same day. The order extending time to file a bill of exception was signed by the Honorable Wallace C. Moore, Judge of the 184th District Court. The Hon. John Benavides, Judge of the 187th District Court was on assignment to the 184th District Court at the time of the trial of the instant case and was the judge presiding throughout the trial of this cause. Art. 40.09, Sec. 6(a), Vernon's Ann.C.C.P., provides: '* * * and for good cause shown, The judge trying the cause may further extend the time in which to file the bills of exception * * *.' (emphasis added). In Slaughter v. State, 151 Tex.Crim. R., 205 S.W.2d 781, it was noted that reasons may exist and conditions arise where a judge other than the one trying the case may extend the time of filing bills of exception such as death or disability. Art. 760, Sec. 5, V.A.C.C.P., in effect at the time of the Slaughter case, provided that the judge trying the cause may estend the time in which to file bills of exception. In Seales v. State, 166 Tex.Crim. R., 311 S.W.2d 854, this Court said that presentation of a bill of exception to a judge other than the one who tried the case was not exercising diligence, where the reason for same was that the trial judge was out of town.1

In the instant case, the record fails to reflect any effort on appellant's part to present the request to extend the time for filing bills of exception to Judge Benavides who tried the case. Judge Benavides regularly sits as the Judge of the 187th District Court in San Antonio. The failure of appellant *Page 570 to present the instrument to Judge Benavides under the circumstances herein constituted a lack of diligence on the part of appellant. The bills of exception appearing in this record can not be considered and nothing is presented for review under appellant's contention of ineffective counsel in the trial court.

Appellant contends that a statement by counsel for the State misled him to his detriment and prevented him from receiving an effective defense.

The record reflects the following occurred on cross-examination of appellant:

'Q * * * and Charles Hopkins is mistaken when he positively identified you as the man who put that pistol on his head?

'A I have ten (10) witnesses who can testify where I was.

'Q We will hear them when you get through testifying. But he is mistaken?

'A Yes sir, he is.'

Appellant contends the statement, 'We will hear them when you get through testifying' combined with the incompetent defense by appellant's trial counsel denied appellant a defense that meets constitutionally prescribed standards. No objection was made to this statement in the trial court, and nothing is presented for review. Parsley v. State, Tex.Cr.App., 453 S.W.2d 475; Garcia v. State, Tex.Cr.App., 428 S.W.2d 334. Further, if objection had been timely made, we perceive no error. The statement of the prosecuting attorney was equivalent to telling appellant to allow his ten witnesses to testify for themselves rather than appellant relating their testimony.

Appellant raises, by his pro se brief, other grounds of error which we have reviewed and found to be clearly without merit.

The judgment is affirmed.

Opinion approved by the Court.

MORRISON, J., not participating.

1 Art. 759a, Sec. 4, C.C.P., in effect at the time of the Seals case contained a clause identical to the pertinent portion of Art. 40.09, Sec. 6(a), V.A.C.C.P.