Hurd v. State

704 S.W.2d 535
CourtCourt of Appeals of Texas
DecidedJanuary 30, 1986
DocketNo. B14-83-011-CR
StatusPublished

This text of 704 S.W.2d 535 (Hurd v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hurd v. State, 704 S.W.2d 535 (Tex. Ct. App. 1986).

Opinion

PAUL PRESSLER, Justice.

Appellant was found guilty of aggravated robbery by the jury and the court assessed punishment at fifteen years and one day in the Texas Department of Corrections. We affirm.

Clail MacSorley testified that he was working as the manager of a Radio Shack store on June 9, 1982, when a man entered the store at about 8:10 p.m., and asked about some merchandise. The man was wearing a shirt with a logo of “Hair Factory” on one side and the name “Lonnie” on the other. After conversing for several minutes, the man said “You should have f_in remembered me,” and pulled a gun motioning MacSorley towards the cash drawer, saying “Get over there and give it to me.” MacSorley told the man that he would have to reach under the counter to open the cash drawer. The man replied, “open it.” While attempting to open the drawer, another employee, Jody Coles, entered the store. The man stuck the gun back into his pants and walked towards the front door saying “I am going to be cool; be cool, I don’t want no trouble.”

When the man got outside, MacSorley told Coles to call the police because there had been an attempted robbery. MacSor-ley followed the man outside and saw him walking in a manner which indicated that he could not make up his mind which way to go. The man went back inside the store and picked up his car keys off the counter telling Coles, “I don’t want no trouble.” The man then walked to a white Chrysler car and drove away. MacSorley copied down the license number which he later gave to the police. MacSorley identified the appellant. Coles testified that he saw appellant’s gun. Appellant admitted that he went to the Radio Shack around 8:00 or 8:10 p.m. in the car identified by MacSor-ley. However, appellant testified that he did not pull a gun, that he did not attempt to rob the store, and that he and MacSorley merely argued.

Appellant brings six grounds of error. In his first, he contends that his right to cross-examine a state’s witness was improperly curtailed by the trial court. While cross-examining the complaining witness, the following took place:

Q. Mr. MacSorley, do you have something against black people?
A. No, Sir.
Q. And have you ever stated or had feelings or oppositions to people of black race?
A. No, Sir.
Q. And there is nothing then in your past, as far ás you could tell, that would reflect that you would do anything toward a person solely for the reason that they were black?
A. No, Sir.
Mr. Newlin: Your honor, may I bring in the testimony which we discussed before the Court?
[541]*541The Court: Ladies and Gentlemen, pass into the Jury Room and we will call you back out shortly.
(At this time a short recess is taken and the following proceedings are had out of the presence of the jury.)
The Court: Could you bring me any witnesses that will impeach those three things that you’ve said; could do you (sic) that?
Mr. Newlin: To lay the predicate for that, I have to ask him those questions. Let me lay the predicate and I will get a witness that will come from Florida. I will get him here anytime. Let me lay the predicate and I will worry about getting the witness.
The Court: If you have any witnesses that could impeach him on those things, I will let you put those things on. But if you don’t have any witnesses—
Mr. Newlin: I have an absolute right to ask him about these things. There is a predicate laid; he said he has no racial problems.
The Court: If you could put on evidence to impeach that, you could do it.
Mr. Newlin: Now I am entitled to ask him about individual events and circumstances which refute the things, by his own testimony, that he’s testified to.
The Court: No, I will not let you do that. You could bring in any witnesses you want to bring in. Bring the jury out.

Generally great latitude should be allowed the accused to show a witness’ bias or a motive to falsify his testimony. Cloud v. State, 567 S.W.2d 801 (Tex.Crim.App.1978). However, trial courts have considerable discretion as to how and when bias may be proven and the extent to which a witness may be cross-examined for the purpose of showing bias. Carrillo v. State, 591 S.W.2d 876 (Tex.Crim.App.1979). Here the Court, in its discretion, permitted appellant to attempt to prove racial prejudice through the testimony of witnesses. Appellant did not produce any testimony to refute the complainant's testimony. The first ground of error is overruled.

In his second and third grounds of error, appellant argues that the court erred in failing to charge the jury on the lesser offenses of aggravated assault and assault. A two step procedure is used to determine whether a lesser offense should be included in the court’s charge. First, the lesser offense must be included within the proof necessary to establish the offense charged. Second, there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense. See Royster v. State, 622 S.W.2d 442 (Tex.Crim.App.1981); Rogers v. State, 687 S.W.2d 337 (Tex.Crim.App.1985).

In claiming that he never pulled a gun, appellant presented evidence that he had committed no offense at all. Appellant is entitled to a charge on aggravated assault only if there was testimony that if guilty, he was guilty only of the lesser included offense. Any evidence concerning use of the gun included the testimony that appellant motioned MacSorley towards the cash drawer and said, “Get over there and give it to me.” Therefore, the evidence at trial established that if guilty at all, appellant was guilty of aggravated robbery. The fact that the state in proving aggravated robbery may also have proved a lesser offense does not entitle a defendant to a charge on the lesser offense. See Cordova v. State, 698 S.W.2d 107 (Tex.Crim.App.1985), Royster, supra.

Appellant also argues that the court should have charged the jury on the lesser crime of assault. However, assault requires one to intentionally or knowingly threaten another person with imminent bodily injury. According to appellant’s testimony, he shouted at complainant but did not threaten him with imminent bodily injury. Therefore, appellant has failed to establish that if he is guilty, he is guilty only of assault. The second and third grounds of error are overruled.

In his fourth ground of error, appellant contends that his conviction should be reversed because there is no evidence of the State’s consenting to his waiver of hav[542]*542ing the jury assess punishment. In Garza v. State,

Related

Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
Rogers v. State
687 S.W.2d 337 (Court of Criminal Appeals of Texas, 1985)
Callaway v. State
594 S.W.2d 440 (Court of Criminal Appeals of Texas, 1980)
Passmore v. State
617 S.W.2d 682 (Court of Criminal Appeals of Texas, 1981)
Garza v. State
479 S.W.2d 294 (Court of Criminal Appeals of Texas, 1972)
Johnson v. State
541 S.W.2d 185 (Court of Criminal Appeals of Texas, 1976)
Cordova v. State
698 S.W.2d 107 (Court of Criminal Appeals of Texas, 1985)
Carrillo v. State
591 S.W.2d 876 (Court of Criminal Appeals of Texas, 1979)
Royster v. State
622 S.W.2d 442 (Court of Criminal Appeals of Texas, 1981)
Cloud v. State
567 S.W.2d 801 (Court of Criminal Appeals of Texas, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
704 S.W.2d 535, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hurd-v-state-texapp-1986.