Hightower v. State

629 S.W.2d 920, 1981 Tex. Crim. App. LEXIS 1254

• Court: Court of Criminal Appeals of Texas
• Decided: November 18, 1981
• Docket: 61119
• Status: Published

Opinions

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for aggravated robbery. After finding appellant guilty, the jury assessed punishment, enhanced by a prior conviction, at 50 years.

In his first ground of error, appellant maintains the court erred in overruling his motion to quash the indictment. He contends the indictment was insufficient to provide him notice of the offense with which he was charged because the property description in the indictment is insufficient and the indictment fails to state who owned the property. The indictment under which appellant was prosecuted alleges in pertinent part that on May 8, 1978, appellant:

“did then and there intentionally and knowingly while in the course of committing the offense of theft, and with the intent to obtain and maintain control of property, namely current monies of the United States, threaten and place RONALD KING in fear of imminent serious bodily injury and death by using and exhibiting a deadly weapon, namely a handgun.”

The offense of aggravated robbery, under V.T.C.A. Penal Code, Sec. 29.03, is no longer an aggravated form of theft, but is rather a form of assault. Ex Parte Lucas, 574 S.W.2d 162 (Tex.Cr.App.). It has thus been held that it is unnecessary to allege the elements of theft in an aggravated robbery indictment. Earl v. State, 514 S.W.2d 273 (Tex.Cr.App.). In Hill v. State, 568 S.W.2d 338 (Tex.Cr.App.), it was held that even if a motion to quash is filed, an indictment for aggravated robbery which alleges the name of the person whom it is alleged the defendant robbed, gives sufficient notice without particularly describing the property he allegedly took or intended to take in the course of committing theft.

In the instant case, appellant’s motion to quash the indictment complained of both the property description contained within the indictment and the failure to allege the name of the owner of the property. We find that the indictment, as set out above, gives appellant sufficient notice of the offense with which he was charged. Hill v. State, supra. No error is shown in the court overruling appellant’s motion to quash.

In his seventh and eighth grounds of error, appellant challenges the sufficiency of the evidence to support his conviction. He maintains that there is insufficient evidence as to the elements of consent and ownership. He further urges that the State “failed to put on any evidence justifying a conviction beyond a reasonable doubt.”

Ronald King testified that on May 8, 1978, he was employed as the assistant manager for a Pizza Hut restaurant in Waco. King related that on the date in question, he was working both in the kitchen and at the cash register. Three individuals entered the restaurant and ordered a pizza. King stated that appellant approached the cash register in order to pay the bill. Appellant then handed King a small pizza box and directed him to put the money from the cash register inside the box. King testified that appellant’s companion was standing near a front door with a handgun. King complied with appellant’s request and the two men fled from the restaurant.

Appellant urges the evidence is insufficient as to the element of consent. The record reflects that on direct examination, the prosecutor asked King:

“Q. Okay. Did you give your consent to have this money taken?

“A. No, ma’am.”

We find the evidence sufficient to prove that the money was taken without the consent of the complainant. Appellant next contends the evidence is insufficient to prove ownership.

In Cross v. State, 550 S.W.2d 61 (Tex.Cr.App.), the defendant was convicted of aggravated robbery. On appeal, he maintained the evidence was insufficient to prove ownership of the property taken from the complaining witness. The record showed that the defendant robbed the cashier at a grocery store in Mineral Wells. This Court found that under the present Penal Code, the evidence is sufficient to show that the property was taken from the care, custody and control of the complaining witness. See Reese v. State, 531 S.W.2d 638 (Tex.Cr.App.).

In the instant case, King was employed as the assistant manager for the restaurant. As such, he performed the duties of both cook and cashier. The money was taken from him while he was performing his duties as cashier. We conclude that the evidence is sufficient to show that the property was taken from his care, custody and control. We find the evidence sufficient to prove the element of ownership and likewise sufficient to support appellant’s conviction for aggravated robbery. Appellant’s seventh and eighth grounds of error are overruled.

In his second ground of error, appellant maintains the court erred in allowing his common-law wife to testify against him. He contends that her testimony was erroneously admitted in violation of Art. 38.11, V.A.C.C.P.

Appellant testified that his common-law wife is Clara Turnbough. He related that he had told numerous individuals that he and Turnbough were married. He further stated that they had lived together for several days. Appellant’s mother, Dorothy Hightower, testified that Turnbough had told her that she and appellant were married. Hightower further related that her son had told her that Turnbough was his wife.

Turnbough related that she and appellant never had an agreement to have a common-law marriage. She further stated that she never had any intention to marry appellant. Turnbough related that she had never represented to anyone that appellant was her husband. Finally, she stated that she had never lived with appellant.

The elements of a common-law marriage are an agreement presently to become man and wife, a living together pursuant to the agreement and cohabitation as husband and wife, and a holding out of each other to the public as husband and wife. Archie v. State, 511 S.W.2d 942 (Tex.Cr.App.). A claim of common-law marriage is closely scrutinized by the courts and the agreement of marriage should be specific on both sides. Chatman v. State, 513 S.W.2d 854 (Tex.Cr.App.).

In Krzesinski v. State, 169 Tex.Cr.R. 178, 333 S.W.2d 149, the defendant maintained the court erred in allowing his common-law wife to testify against him at trial. The evidence revealed that the defendant offered evidence seeking to establish that the witness was in fact his common-law wife. However, there was also evidence which tended to show that their relationship had been only an illicit one. The Court concluded that the evidence did not show as a matter of law that the witness was the common-law wife of the defendant. The Court therefore found that the failure to complain that the issue was not submitted to the jury, or to request that it be submitted, waived the error which the defendant sought to present. Id. 333 S.W.2d at 151.

In the instant cause, there was conflicting evidence as to whether Turn-bough was in fact appellant’s common-law wife. Appellant and his mother presented evidence which tended to establish that Turnbough was in fact his common-law wife. On the other hand, Turnbough denied that she and appellant had a common-law marriage. The existence of a common-law marriage is an issue of fact to be determined by the trier of the fact. Warren v. Kyle, 565 S.W.2d 313 (Tex.Civ.App.—Austin 1978, no writ). We find that appellant’s failure to complain that the issue of a common-law marriage was not submitted to the jury, or to request that it be submitted, waived the error he now seeks to present. Krzesinski v. State, supra. Appellant’s second ground of error, is without merit.

In his third ground of error, appellant further contends the court erred in permitting Turnbough to testify as a witness for the State. He maintains that she should not have been allowed to testify because her name did not appear on a witness list which was provided to appellant pursuant to a motion for discovery.

The record reflects that on August 3, 1978, the court granted appellant’s motion for discovery and ordered the State to furnish a list of the names of the witnesses the State, in good faith, intended to use upon its case in chief. Such list was to be furnished to appellant prior to the voir dire examination of the jury panel. The jury was selected and sworn on August 7, 1978. When Turnbough was called as a witness by the State, appellant objected to her testimony on the basis that her name had not been included upon the witness list furnished by the State. In this regard, the prosecutor stated as follows:

“MR. MALONE (Prosecutor): I did on that Thursday or Friday, or whenever it was that Mr. Tandy called, I told him to assume that we were going to use her. That although I was not positive of it, that for his — for the sake of his Defense, he ought to assume she was going to be called.

“MR. TANDY (Defense Attorney): Your Honor, the Court entered an order that he would furnish me names of all witnesses prior to voir dire. He furnished me a list and when I was talking to the jury yesterday I asked if these were all. And he said, ‘These right here are the ones.’ He never furnished Clara Turn-bough’s name.

“MR. MALONE: Well, I told him to assume that she would be used, Your Hon- or.”

In Young v. State, 547 S.W.2d 23 (Tex.Cr.App.), it was held that the witnesses should be disclosed if they will be used by the State at any stage in the trial. If a witness who was not included within a witness list is permitted to testify, the standard of review is whether the trial court abused its discretion in allowing such witness to testify. Lincoln v. State, 508 S.W.2d 635 (Tex.Cr.App.). Among the factors which will be considered by this Court in determining whether there has been an abuse of discretion is a showing of bad faith on the part of the prosecutor in failing to disclose ahead of time the name of the witness. See Clay v. State, 505 S.W.2d 882 (Tex.Cr.App.). Another such factor is whether the defendant can reasonably anticipate that the witness would testify although his or her name was not included within the witness list. See Smith v. State, 540 S.W.2d 693 (Tex.Cr.App.).

In the instant cause, it is undisputed that Turnbough’s name did not appear upon the witness list. However, before that list was even furnished to appellant, the prosecutor informed counsel that he should “assume she was going to be called” as a witness. The record thus reveals that appellant could have reasonably anticipated that Turnbough would in fact be called as a witness by the State. Smith v. State, supra. Further, appellant has not shown bad faith on the part of the prosecutor in failing to include Turnbough’s name on the witness list. We find no abuse of discretion in the trial court permitting Turnbough to testify. Appellant’s third ground of error is overruled.

In his fifth ground of error, appellant maintains the court erred in admitting a letter into evidence. The letter contains an admission to the instant offense. He contends the letter was inadmissible because it was not shown to have been made in compliance with Art. 38.22, V.A.C.C.P.

The letter in question was written by appellant to Turnbough while he was incarcerated in the McLennan County Jail. By its very terms, Art. 38.22, Sec. 5, supra, has no application to a statement “that does not stem from custodial interrogation.” See Stone v. State, 583 S.W.2d 410 (Tex.Cr.App.); McGilvery v. State, 533 S.W.2d 24 (Tex.Cr.App.). Appellant’s reliance on Pierson v. State, 145 Tex.Cr.R. 388, 168 S.W.2d 256, is misplaced. There, it was stated that a letter written by the defendant while in jail would be covered by the same rules as applicable to oral confessions. However, the holding in Pierson was based upon former Art. 727 of the 1925 Code of Criminal Procedure. Our current statute, Art. 38.22, Sec. 2, supra, relates to written statements made by an accused as a result of custodial interrogation.

In the instant cause, the record does not reflect that the letter which appellant wrote to Turnbough was the result of custodial interrogation. We find that admission of the letter did not violate Art. 38.22, supra. Appellant’s fifth ground of error is without merit.

In his sixth ground of error, appellant further contends the court erred in admitting into evidence the letter written to Turnbough. He maintains that the letter was inadmissible because the State failed to furnish a copy of the letter to appellant pursuant to a motion for discovery.

This Court has held that an error presented on appeal must comport with the objection raised at trial. See Nelson v. State, 607 S.W.2d 554 (Tex.Cr.App.); Simpkins v. State, 590 S.W.2d 129 (Tex.Cr.App.). The record fails to reflect that appellant objected to the admissibility of the letter upon the basis that the State had failed to comply with his motion for discovery. Therefore, the ground of error urged upon appeal differs from the objection voiced at the time of trial. Nothing is presented for review.

In his fourth ground of error, appellant maintains the court erred in failing to grant an oral motion for continuance which was made during the trial. He maintains that he was “surprised” by the State calling Turnbough as a witness.

When by some unexpected occurrence during trial, the defendant is so taken by surprise that a fair trial cannot be had, a motion for continuance is addressed to the sound discretion of the court. Garcia v. State, 581 S.W.2d 168 (Tex.Cr.App.); Art. 29.13, V.A.C.C.P. There is no abuse of discretion in failing to grant an oral motion for continuance. Ortiz v. State, 154 Tex.Cr.R. 52, 224 S.W.2d 883.

As noted above, some three or four days before trial, the prosecutor informed appellant’s counsel that he could “assume” that Turnbough would be called as a witness in the trial of the case. Under such circumstances, we find no abuse of discretion in the court refusing to grant appellant’s oral motion requesting a continuance based upon Turnbough being allowed to testify as a witness for the State. Appellant’s fourth ground of error is without merit.

In his ninth ground of error, appellant contends the court erred in overruling his objection to alleged improper jury argument. He maintains the argument was improper in that it implied that appellant was guilty of two extraneous murders.

The argument of which appellant now complains occurred at the conclusion of the guilt or innocence phase of the trial when the prosecutor argued as follows:

“What about Clara Turnbough? Well, he began talking about our investigator talking to Clara about two murders. And he said, ‘Yeah, they asked her if they had suspects and then we ended the question—the State ended the question.' Well, if you will remember, we ended the questions because there are only certain questions we can ask. You know, we have legal questions. You have heard people making objections. We asked all the questions that we legally could ask. And then you heard Mr. Tandy stand up and object, that’s why we quit asking the questions, because we asked all the questions we legally could. Clara knew something about them. Remember, Clara was not the suspect. Clara was not a suspect in those two murders, but she knew something about them. Of course, you know, she had been running around with Jimmy Hightower for the last six months.... ”

In order to be appropriate, jury argument must fall within the categories of (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; or (4) a plea for law enforcement. Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.). In the instant case, there was evidence produced at trial that Turnbough was being questioned relative to two unsolved murders. The evidence further revealed that she was not a suspect in those offenses. Likewise, there was evidence that Turnbough had been acquainted with appellant for the last six months.

We do not find that the complained of argument either directly or indirectly indicated that appellant was in some way involved in the two extraneous murder offenses. The facts reveal that Turnbough knew something about the two extraneous murder offenses and that she had been “running around” with appellant. These two facts do not act so as to establish that appellant was in some way involved in the murder offenses or that Turnbough’s knowledge of the offenses came from appellant. We find that the complained of argument was based upon evidence presented at trial and was therefore proper. Griffin v. State, 554 S.W.2d 688 (Tex.Cr.App.). No error is shown in the court overruling appellant’s objection.

The judgment is affirmed.