Howard v. State

453 S.W.2d 150, 1970 Tex. Crim. App. LEXIS 1478

Opinions

OPINION

MORRISON, Judge.

The offense js robbery by assault with a prior non-capital conviction alleged for enhancement under Article 62, Vernon’s Ann.P.C.; the punishment, life.

Appellant’s first ground of error is that the evidence is insufficient to support the second paragraph in the indictment which alleged a 1963 conviction for burglary. When the indictment, judgment, and sentence were introduced, no objection was interposed. No issue was made in the trial court as to appellant being the same Gary Lee Howard who had been convicted in said cause.

His first ground of error is overruled.

As in Denham v. State, Tex.Cr.App., 428 S.W.2d 814, we again overrule appellant’s contention that copies of such instruments should have been served upon him in advance of trial by virtue of the terms of Article 3731a, Section 3, Vernon’s Ann.Civ.St.

Two witnesses positively identified appellant as the perpetrator of the robbery, and we overrule his contention that the evidence is insufficient to support the conviction.

We further overrule his contention that his constitutional rights were violated when he was taken to the sheriff’s office and his fingerprints were taken following a lawful arrest.

His next ground of error is that the court committed fundamental error in permitting the state to prove at the punishment hearing that appellant had been convicted in cases other than those alleged for enhancement. We adhere to our holding in Smith v. State, Tex.Cr.App., 439 S.W.2d 834, which is contrary to appellant’s contention.

He next contends that the pistol, which was in open view on a table twelve to eighteen inches from appellant’s head, where he was asleep as the officers entered the room in response to a male voice which said “come in” when they knocked, was inadmissible. This did not constitute a search and even if it had been, the pistol would have been admissible under the holding in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685.

The arresting officers had seen a warrant for appellant’s arrest on their superior’s desk prior to the arrest though they did not have the warrant with them. They informed appellant that they were arresting him for robbery. This is a substantial compliance with the terms of Article 15.26, Vernon’s Ann.C.C.P.

Finding no reversible error, the judgment is affirmed.

WOODLEY, P. J., and ONION, J., concur in the result.