Hilliard v. State

491 S.W.2d 676

Opinion

OPINION

DALLY, Commissioner.

The conviction is for robbery by assault; the punishment twenty-five years imprisonment.

This is a companion case to Franklin v. State, 488 S.W.2d 826 (Tex.Cr.App.1972). Franklin and this appellant were both indicted for the same robbery but tried separately. The record in this case has been carefully studied and it is substantially the same as that which was summarized and discussed at length in the Franklin case. The facts need not be repeated here.

Evidence of the same extraneous offense which was admitted in the Franklin case was admitted in this case over a proper and timely objection. It was offered and admitted in evidence in this case as it was in that case, primarily upon the issue of the identity of the appellant. Here, as in that case, identity was not a contested issue. Although the cross-examination of the complaining witness may have been slightly stronger in this case, the complaining witness’ testimony regarding his identification of the appellant was stronger than in the Franklin case. The witness’ positive identification testimony was not shaken in the least by such cross-examination.

The appellant here offered no evidence, rested and closed with the State.

For the same reason and based upon the same authorities as those found in Franklin v. State, supra, the judgment in this case must be reversed.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.