Browning v. State

451 S.W.2d 234, 1970 Tex. Crim. App. LEXIS 1180

• Court: Court of Criminal Appeals of Texas
• Decided: January 14, 1970
• Docket: 42486
• Status: Published

Opinions

OPINION

DOUGLAS, Judge.

The conviction is for robbery by assault. A prior conviction was alleged for enhancement; the punishment, life.

The sole complaint is that the evidence is insufficient to corroborate an accomplice witness and is therefore insufficient to support the conviction.

Lewis Webb testified that he was manager of a grocery store in Houston when, at about eleven thirty o’clock at night, appellant and two other men entered the store. Appellant and one man went to the counter and bought some chewing gum and started to leave. The third man (Emit Square) stuck a gun in Webb’s ribs and asked for the money. Because of a fear of his life or serious bodily injury, Webb obliged. After a customer entered, Square ordered Webb outside the store. As Webb walked around the counter, he grabbed the gun and kept Square’s arm extended and then locked the door to prevent the other men from returning. With the help of the customer, he wrestled Square to the floor and held him until police arrived.

Marvin Farriel, the accomplice witness, testified that he, Emit Square and appellant entered the grocery store together and that he and appellant stayed at the counter while Square walked to the back. While he and appellant were leaving, they heard a commotion which sounded like a fight. They ran back to the car and decided not to wait for Square and drove away. In a short time they returned to see if Square escaped and saw a police car.

Farriel testified that before the robbery and while at appellant’s house, he, appellant and two others discussed robberies. Appellant, in an attempt to locate a gun, called Emit Square. The group picked up Square and then drove around looking for a place to rob and decided on the grocery store.

The evidence is sufficient to show that appellant was a principal. Article 65, Vernon’s Ann.P.C., provides:

“All persons are principals who are guilty of acting together in the commission of an offense.”

Russell v. State, Tex.Cr.App., 396 S.W. 2d 117, held that evidence against one who was with the robbers at the time of the robbery and arrest but was not actually seen to participate actively in the robbery was sufficient to support the conviction for robbery.

Article 69, V.A.P.C., provides:

“Any person who advises or agrees to the commission of an offense and who is present when the same is committed is a principal whether he aid or not in the illegal act.”

See Westfall v. State, Tex.Cr.App., 375 S.W.2d 911, and 2 Branch’s Ann.P.C.2d, Sec.748, supp. p. 11, and the authorities there cited.

The evidence is sufficient even without the testimony of accomplice witness Farriel. However, there is sufficient evidence to corroborate his testimony. Square, the actual robber, called, by appellant, testified that he, appellant and three others were in the car together and that appellant and Farriel went into the store before he did. He further testified that four of them drove by for him before the robbery.

Considering the evidence most favorable to the State, appellant was a participant in the robbery.

The judgment is affirmed.