Fairris v. State

350 S.W.2d 935, 171 Tex. Crim. 416, 1961 Tex. Crim. App. LEXIS 4493

• Court: Court of Criminal Appeals of Texas
• Decided: October 2, 1961
• Docket: 33614
• Status: Published

Opinions

McDonald, Judge.

Appellant was found guilty by a jury of the primary offense of robbery by assault. The indictment charged an habitual criminal, it being alleged that before the commission of the instant offense of robbery by assault, he had been convicted of the prior offenses of burglary and robbery by assault. In addition to finding appellant guilty of the instant or primary offense, the jury rejected appellant’s plea of not guilty and further found that he had previously been convicted of robbery by assault, an offense of like character and of the same nature. The punishment provided by law is life imprisonment in the penitentiary, which was assessed appellant by the court after the jury’s finding of guilt on both counts of the indictment.

The evidence reflects that at about 10:15 p.m., on the evening of September 15, 1960, William Marvin Hall, accompanied by Joy Dale Scales, returned to Hall’s house at 808 West Main in Houston, Harris County, Texas. A short time after they had entered the house the appellant and his companion, holding guns, stepped out from behind a door. Even though appellant and his companion were wearing women’s stockings and handkerchiefs across their faces, appellant was positively identified by both Hall and Miss Scales. After forcing Hall and Miss Scales to lie down on the floor, appellant and his companion tied their hands securely behind their backs. Then they took them to an upstairs bedroom where, for a perior of longer than an hour appellant and his companion tortured, beat, and burned them with cigarettes in an effort to make them tell where they believed Hall was concealing a large sum of money. The pair had already taken approximately $250 from Hall’s coat. Hall told appellant that his money was at his gift shop located on the Old Spanish Trail in Houston, and also told him that an employee, Shirley Dunn, was the only one who had a key to the gift shop. Appellant then forced Hall to call Shirley Dunn and have her bring the key to Hall’s house. Shortly thereafter, Shirley Dunn and her boy friend arrived at Hall’s residence. Joy Dale Scales had been untied and she admitted the couple into the room, and they were immediately tied by the appellant and his companion. After a conference in another room, the appellant and his companion decided that the appellant’s companion would take the key and go to the gift shop to obtain the money. The companion left and appellant stayed to guard the four prisoners. When appellant want into the kitchen to get a glass of water for Hall, Hall, with his hands tied, leaped head-first through a window in the living room and ran down the street. Appellant then ran from the house. The companion of appellant came back shortly thereafter and upon learning what had happened, also fled from the scene. Appellant and his companion were arrested later and were positively identified in a police lineup by Hall, Joy Dale Scales, and Shirley Dunn.

A woman’s stocking and handkerchief, found near Hall’s house the next day by a neighbor, were delivered to the police. Upon inspection, human hairs were discovered in the stocking, which Chemist and Toxicologist Crawford testified had many similar characteristics, and no dissimilar characteristics, to the known samples of hair from the head of appellant.

A white Buick, 1960 automobile, bearing a license plate No. PY 3712, which had been purchased a short time before by the appellant, was seen by police officers a short distance from Hall’s house shortly after the incident occurred, and was seen to drive away at a high rate of speed.

Appellant’s defense was that of alibi. Through the testimony of Margaret Davis, an admitted common prostitute, he attempted to show that he was in Dallas on the evening that the offense occurred. Margaret Davis testified that she and another girl picked up the appellant in Houston and took him to Dallas, where he registered at the Town House Motel.

Ross N. Baird, of Dallas, testified that he saw appellant in Dallas on the evening of September 15, 1960, and talked to him concerning the employment of appellant at a later date.

Appellant did not testify in his own behalf.

The evidence is amply sufficient to prove the primary offense of robbery by assault.

Because of the variance in the alleged date of the conviction and that appearing in the judgment of conviction of the first prior offense of burglary, the state was unable to prove that particular offense.

The state did amply prove that the appellant had been convicted of the prior offense of robbery by assault in 1953, as alleged in the indictment.

The jury rejected the defense advanced by the appellant to the primary offense and found him guilty of that offense and that he had been convicted of the prior alleged robbery by assault.

The record contains no formal bills of exception. The appellant made no objections to the court’s charge, and no requested charges were presented.

Several informal bills of exception appear in the statement of facts, none of which require discussion, as all of them are without merit.

Appellant’s counsel filed no brief.

Finding no reversible error and deeming the evidence abundantly sufficient to support the verdict, the judgment is affirmed.