Bell v. State

321 S.W.2d 302, 167 Tex. Crim. 460, 1959 Tex. Crim. App. LEXIS 1869

• Court: Court of Criminal Appeals of Texas
• Decided: March 4, 1959
• Docket: 30308
• Status: Published

Opinions

MORRISON, Presiding Judge.

The offense is robbery, as denounced by Articles 1559 and 1560, V.A.P.C., in that the robbery was alleged to have been committed in a foreign country and the fruits thereof brought into the State of Texas; the punishment, 5 years.

The laws of the State of Chihuahua were introduced in order to comply with the terms of Article 1560, supra.

Cantu, a 61-year-old Latin American railroad worker, took his savings in the form of fourteen one hundred dollar bills to Juarez, where he was to meet a friend for the purpose of purchasing a home in that city. Cantu arrived at the meeting place before five o’clock in the morning and waited for his friend. When he entered the bar he saw the bartender, several women, and the appellant, a colored man. After a time Cantu went to the toilet and, while he was relieving himself, felt a blunt object as it was forced into his back and his coin purse being taken from his pocket. He immediately announced that he had been robbed, gave chase, but after several blocks the appellant eluded him. Later that day Cantu came to El Paso, where he identified the appellant as his robber from a lineup consisting of white and colored men. He fixed the time of the robbery at six o’clock in the morning.

Welch, a friend of appellant’s, testified that he resided in Juarez but worked in El Paso, that between six and seven o’clock in the morning on the day in question the appellant came to his home looking “like he had been running,” and told him that he had “just beat a guy for $14.00. According to Welch the appellant borrowed a change of clothes, borrowed his automobile, asked Welch to pick up his (the appellant’s) automobile across the street from the bar where the appellant had been robbed and meet him in El Paso.

Later on in the day, the appellant was arrested, his home searched and taped to the back of a box of matches in a metal container hanging on the wall was found a coin purse containing nine one hundred dollar bills. It was established that the appellant made his living washing automobiles and had said that he was not making much money.

We have concluded that the conduct of' the appellant as reflected by the testimony of the witness Welch, taken with the other circumstances, was sufficient to support the jury’s finding that it was the appellant who brought the fruits of the robbery into Texas.

There remains, then, only the appellant’s contention that the evidence shows that the offense which occurred in Mexico constituted the crime of theft from the person rather than robbery. In this connection, we call attention to a portion of Cantu’s testimony on cross-examination:

“Q. Could you feel your wallet leave your pocket? A. Yeah.

“Q. And, as you just testified, I believe, that happened at exactly the same time that the object was stuck in your back? A. Well, it could have been — I don’t know — seconds, or what, but first I think I felt the object in my back and then this snatch of the pocketbook out of my pocket.”

He further testified :■

“Q. Were you afraid? A. Sure, I was afraid. I was afraid that if I would move or try to fight, or something, I might get hurt.”

This court speaking through Judge Davidson in Van Arsdale v. State, 149 Texas Cr. Rep. 639, 198 S.W. 2d 270, said:

“In robbery, actual or threatened violence to the person antecedent to the robbery must exist. Such is not an element of theft from the person. Therein lies the material distinction between the two offenses.”

See also Williams v. State, 51 Texas Cr. Rep. 361, 102 S.W. 1134, and Tones v. State, 48 Texas Cr. Rep. 363, 88 S.W. 217.

The case was submitted to the jury upon a charge on the law of circumstancial evidence, and we find the same sufficient to support the conviction.

Finding no reversible error, the judgment of the trial court is affirmed.