Gibson v. State

448 S.W.2d 481, 1969 Tex. Crim. App. LEXIS 1108

• Court: Court of Criminal Appeals of Texas
• Decided: November 19, 1969
• Docket: 42373
• Status: Published

Opinions

OPINION

MORRISON, Judge.

The offense is robbery; the punishment, thirty-five years.

If the appellant’s first ground of error is properly understood, it is that the indictment charged that appellant acting with one Lavall Bryant committed the robbery, and since the injured party was able to identify only appellant as the participant in the robbery, a variance exists. Hardie v. State, 140 Tex.Cr.R. 368, 144 S.W.2d 571, upon which appellant relies, has no application here. We quote from 2 Branch’s Ann. P.C., Second Edition, Section 704, p. 2, as follows:

“An indictment charging two or more defendants with the commission of an offense need not contain an allegation that the ‘acted together,’ and such allegation, if made, not being descriptive, may be rejected as surplusage.”

See also Bradford v. State, 170 Tex.Cr.R. 530, 342 S.W.2d 319.

He next contends that the court erred in admitting pictures of the robbery scene. We have examined them and do not find them inflammatory even if splotches were blood as appellant contends. No error is shown.

We overrule appellant’s contention that appellant’s identity was not established. The injured party saw him prior and subsequently to being shot and positively identified him. His fingerprints were found at the place he vaulted over the partition and were matched with those taken from him at the jail.

We overrule appellant’s contention that the injured party was not shown to have been put in fear. Appellant first “got his attention” by shooting him in the arm and then he pointed a pistol at his head.

We find no error in the admission of the fingerprints taken from appellant white he was in jail, Gage v. State, Tex.Cr.R., 387 S.W.2d 679; Harrington v. State, Tex.Cr. R., 424 S.W.2d 237; Branch v. State, Tex. Cr.R., 445 S.W.2d 756.

Finding no reversible error, the judgment is affirmed.