Watson v. State

OPINION ON STATE’S MOTION FOR REHEARING

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for aggravated robbery. After finding that ap*882pellant had previously been convicted of a felony, the jury assessed punishment at 40 years.

Officer G. N. Pruett, of the Houston Police Department, testified that while on patrol on January 31, 1977, he received a report of a burglary at Smith Auto Sales on Airline Drive in Houston. Pruett arrived at the scene of the burglary at 11:00 p. m. and observed that the building was on fire.

Pruett testified that he saw appellant standing in the parking lot of the building with a rifle. After instructing appellant to put the rifle on the ground, Pruett returned to his patrol car to call the fire department. While in his car, Pruett observed appellant pick up the rifle and run away.

Marvin Currie, his wife, and four sons lived on Aggie Lane in Houston. Their home was approximately one mile from Smith Auto Sales.

Sixteen-year-old Kevin Currie testified that at approximately 12:30 a. m. on February 1,1977, he heard his dog barking at the back door. When he went to the back door, Currie saw appellant. After opening the back door, appellant told Currie that he had been chasing “a suspect” for three or four miles and wanted to see Currie’s parents. Uninvited, appellant entered the house and followed Currie into the parents’ bedroom. Appellant was armed with a shotgun.

Appellant informed the family that he was “a sheriff” chasing a suspect. Appellant told Currie’s father, Marvin Currie, that he would “splatter him against the wall” if he did not stay back. Appellant then brought the three sons into the parents’ bedroom. The family was told to stay in the bedroom while appellant searched the house for the suspect. They were instructed that failure to follow these instructipns could result in someone being shot by mistake.

Marvin Currie testified that upon approaching the intruder, appellant threatened, “I’ll blow you all over the wall.” After appellant had searched the house, he returned to the bedroom and apologized to the family for breaking in and instructed them to remain in the house while he searched for the suspect outside.

Several helicopters were flying over the area of the Currie home with spotlights aimed toward the ground. Although appellant told the family that he was “with them,” appellant would duck under the front porch of the Currie home whenever the light from a spotlight came near him.

Currie testified that he observed appellant squatted down near the family car in the driveway. A few moments later, appellant drove the car away. Currie stated that he did not give appellant permission to take the car, and that he must have obtained the keys while searching the house.

Two other members of the Currie family identified appellant as the individual who had entered their home. One son, Kirk, testified that appellant had pointed the shotgun at him and motioned for him to go into his parents’ bedroom.

Officer T. W. Reaves, of the Houston Police Department, testified that appellant was arrested after a high speed chase in the Currie’s car. Inside the car, Reaves found a .410 gauge shotgun with three shells in the weapon. Appellant had four other shells in his pocket.

Appellant did not testify, nor, did he present any evidence.

In his third ground of error, appellant challenges the sufficiency of the evidence. He maintains that any threat he communicated to Marvin Currie was not used to effectuate the theft of the Currie’s automobile. He contends that the threat ended before the theft began.

V.T.C.A. Penal Code, Sec. 29.02, proscribes the offense of robbery in the following manner:

“(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property, he:
*883“(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.”

The robbery in the instant case would be classified as an aggravated robbery by virtue of appellant exhibiting the shotgun. See, V.T.C.A. Penal Code, Sec. 29.03(a)(2). The phrase “in the course of committing theft” means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft. See, V.T. C.A. Penal Code, Sec. 29.01(1).

In Davis v. State, Tex.Cr.App., 532 S.W.2d 626, the appellant contended that the evidence was insufficient to support the aggravated robbery conviction. In that case, the evidence showed that the complainant’s automobile was taken after a knife was pointed at him and he jumped from the car. In finding the evidence sufficient, the Court noted:

“In Glasper v. State, Tex.Cr.App., 486 S.W.2d 350, it was stated:
“ ‘Appellant further argues that since the cash register was taken after the victim fled the scene, there is not a sufficient “nexus” between the antecedent violence and the parting with the property to constitute robbery by assault. We do not agree.
“ ‘The fact that the victim was able to break free and run for help prior to the actual taking of the cash register is of no consequence. But for the assault and consequential fleeing there would have been no relinquishment of the property, [authorities omitted]’
“While the conviction in Glasper was under the old Penal Code, we find nothing in the robbery sections in the new Penal Code under which appellant was tried which would require a departure from the holding in Glasper. See V.T.C.A. Penal Code, Sections 29.02 and 29.03. We find our holding in Glasper to be disposi-tive of appellant’s contention.”

Likewise, we find the evidence in the instant case to be sufficient to support the conviction. Through appellant’s intrusion into the Currie house and various threats made to members of the family, he was able to effectuate the theft of the automobile. Appellant’s third ground of error is overruled.

In his fifth ground of error, appellant contends that the trial court erred in denying his motion to quash the enhancement paragraph of the indictment. He maintains that the indictment was subject to a motion to quash in that it failed to allege that the prior conviction had become final prior to the commission of the primary offense.

The enhancement paragraph of the indictment alleged in pertinent part that:

“Before the commission of the offense alleged above, on January 21, 1972, in Cause No. 169795, in Harris County, Texas, the Defendant was convicted of the felony of Robbery by Assault.”

It is not necessary to allege a prior conviction for purposes of enhancement with the same particularity as must be used in charging the original offense. Hollins v. State, Tex.Cr.App., 571 S.W.2d 873. This Court has held that the averment in an indictment that a defendant has been convicted is sufficient to charge the finality of the alleged prior conviction. See, Scott v. State, Tex.Cr.App., 553 S.W.2d 361. Thus, we find that that allegation that appellant was “convicted” in 1972 was sufficient to allege the finality of that prior conviction for enhancement purposes. No error is shown in the denial of appellant’s motion to quash the indictment.

In his fourth ground of error, appellant contends that the trial court erred in failing to submit his specially requested charge on the lesser included offense of aggravated assault. He maintains that while proving that appellant committed an aggravated robbery, the State also proved that he committed an aggravated assault. As noted above, appellant did not testify, nor, did he present any evidence at trial.

*884The indictment in the instant case alleged in pertinent part that appellant:

"... while in the course of committing theft of one automobile owned by Marvin Currie, hereafter styled the Complainant, and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place the Complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a shotgun.”

Art. 37.09(1), V.A.C.C.P., provides that an offense is a lesser included offense if it is established by proof of the same or less than all the facts required to establish the commission of the offense charged. In establishing the commission of the aggravated robbery, the State also proved an aggravated assault under V.T.C.A. Penal Code, Secs. 22.01(a)(2) and 22.02(a)(3); by proving that appellant intentionally and knowingly threatened Marvin Currie with imminent bodily injury by using a deadly weapon. See, Mitchell v. State, Tex.Cr.App., 543 S.W.2d 637.

Appellant would be entitled to a charge on aggravated assault if there were testimony that if guilty at all, he was only guilty of the lesser included offense. See, Eldred v. State, Tex.Cr.App., 578 S.W.2d 721; Williams v. State, Tex.Cr.App., 575 S.W.2d 30. From our examination of the record we can find no evidence which would negate the existence of appellant’s theft of the Currie automobile.

We conclude that the evidence at trial established that if guilty at all, appellant was guilty of the charged offense of aggravated robbery. No error is shown in the trial court’s refusal to charge on the lesser included offense of aggravated assault. Appellant’s fourth ground of error is overruled.

In his first ground of error, appellant challenges the admissibility of testimony by Houston Police Officer F. N. McMillon. The witness testified during the punishment phase that appellant’s reputation for being a peaceful and law-abiding citizen was bad. Appellant maintains that McMil-lon’s testimony was based solely upon a discussion of the events surrounding the instant offense.

In attempting to qualify this witness, the prosecutor asked:

“Q. (By Mr. Cornelius) Have you had information available to you to read and talk to other people who have worked on this case and associated with this defendant, John Michael Watson?
“MR. McCULLOUGH (defense counsel): Objection, Your Honor. The question directly goes to matters related to this case and that is not a proper predicate for the reputation question.
“THE COURT: That’s overruled.
“A. Yes, I have.
“Q. (By Mr. Cornelius) Do you know the reputation of this defendant for peacefulness and law abiding in the community within which he resides and for those with whom he associates?
“A. Yes.
“MR. McCULLOUGH: Object to it.
“A. Yes, sir.
“Q. (By Mr. Cornelius) Is that reputation good or is it bad?
“A. The reputation is bad.”

On original submission, the panel concluded that the above exchange demonstrated that the witness’ testimony was based solely upon a discussion of the alleged events for which appellant was being tried. In its Motion for Rehearing, the State maintains that there is no showing that McMillon’s testimony was based solely upon the allegations of the instant offense.

When a reputation witness testifies that a defendant’s reputation is bad, such testimony must not be based solely upon a discussion of the alleged events for which *885the defendant is then being tried. Ellis v. State, Tex.Cr.App., 543 S.W.2d 135; Twine v. State, Tex.Cr.App., 475 S.W.2d 774. However, such testimony has been held to be admissible when it is based both upon a discussion of the offense for which the defendant is being tried and a discussion of matters other than the instant offense. See, Woodkins v. State, Tex.Cr.App., 542 S.W.2d 855; Proctor v. State, Tex.Cr.App., 503 S.W.2d 566; Frison v. State, Tex.Cr.App., 473 S.W.2d 479.

In the instant case, appellant did not cross-examine McMillon, nor, did he take the witness on voir dire in an effort to establish that the witness had only discussed the facts of the instant offense. The prosecutor asked the witness whether he had talked to those who had associated with the appellant. The witness was further asked what appellant’s reputation was among his associates. Under the state of the record, appellant has not demonstrated that McMillon’s testimony was based solely upon a discussion of the instant offense.

We find no error in the trial court overruling appellant’s objection that the proper predicate had not been laid for McMillon’s testimony. Appellant’s first ground of error is overruled.

In his second ground of error, appellant contends that a witness was improperly allowed to testify during the punishment phase of the trial. He contends that the proper predicate was not laid for the witness to testify that appellant’s reputation as a peaceful and law-abiding citizen was bad.

During the punishment phase, the State called Mary Taylor as a witness. Taylor testified that she had lived in Houston for four months and knew appellant. In attempting to lay the predicate for testimony concerning appellant’s reputation, Taylor testified as follows:

“Q. (By Mr. Cornelius) Just a minute. “Ms. Taylor, you say you know this defendant?
“A. Yes, sir.
“Q. You have met him?
“A. (Witness nods head.)
“Q. Have you talked to people who know this defendant?
“A. No, sir.
“Q. Well, let me rephrase it ....
“Q. (By Mr. Cornelius) Have you talked to any police officers with respect to this defendant?
“A. Yes, sir.
“Q. (By Mr. Cornelius) Have you read any documents with respect to this defendant?
“A. Yes, sir.
“Q. Do you know this defendant’s reputation for peacefulness and law abiding in the community in which he lives and with those with whom he associates?
“MR. McCULLOUGH: Object to the question, Your Honor. The predicate is not proper; specifically with regard to the matter of documents; does not lay the predicate for the reputation question.
“THE COURT: That’s overruled.
“Q. (By Mr. Cornelius) Do you know the reputation?
“A. Yes, sir.
“Q. Is that reputation good or is it bad?
“A. Bad.”

On cross-examination, Taylor stated that she had not talked to “anybody about him (appellant).”

On original submission, the panel concluded that the proper predicate had not been laid for Taylor’s testimony. There was no showing that she had discussed appellant’s reputation with anyone who knew him or with any member of his community.

In its Motion for Rehearing, the State contends that any error in admitting Tay*886lor’s testimony was harmless. In support of this contention the State cites Mitchell v. State, 524 S.W.2d 510. In that case, the appellant was convicted of murder with malice and punishment was assessed by the jury at 100 years. During the punishment phase, a police officer testified that the defendant’s reputation as a peaceful and law-abiding citizen was bad. The Court found that the officer was not qualified to give this testimony in that he had never discussed the defendant’s reputation with anyone else. Mitchell v. State, supra at 513.

In Mitchell, the Court found the error in admitting the officer’s testimony to be harmless:

“We have concluded, however, that the error in permitting the witness to testify was harmless. Waits’ testimony was extremely terse, without embellishment. Moreover, the record shows that he was followed at the punishment phase by three other witnesses from law enforcement agencies in or near Johnson County who gave, without objection, testimony identical to that of Chief Waits’. We conclude that the effect of Waits’ testimony was harmless beyond a reasonable doubt.”

In the instant case, the State introduced evidence of two prior felony convictions into evidence. One conviction was for robbery by assault in which punishment was assessed at ten years. The other conviction was for burglary with intent to commit theft in which punishment was assessed at five years.

Appellant’s prior conviction for robbery was alleged for enhancement of punishment. After finding that appellant was the same person previously convicted, the jury was authorized to assess punishment for life, or for any term of not more than 99 years or less than 15 years. See, V.T.C.A. Penal Code, Sec. 12.42(c).

As noted above, Officer McMillon testified that appellant’s reputation was bad. Furthermore, Bruce Kroger, an arson investigator, testified that appellant’s reputation was bad. Lastly, the State reoffered all of the evidence from the guilt or innocence stage of the trial. Based upon the evidence presented at the guilt or innocence and punishment phases of the trial, we conclude that the effect of Taylor’s testimony was harmless beyond a reasonable doubt.

We have examined the contentions advanced in appellant’s pro se brief and find same to be without merit.

The State’s Motion for Rehearing is granted and the judgment is affirmed.

ONION, P. J., and ROBERTS, J., dissent for reasons stated in original opinion.