Mays v. State

428 S.W.2d 325, 1968 Tex. Crim. App. LEXIS 942
CourtCourt of Criminal Appeals of Texas
DecidedMay 29, 1968
Docket41274
StatusPublished
Cited by15 cases

This text of 428 S.W.2d 325 (Mays v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mays v. State, 428 S.W.2d 325, 1968 Tex. Crim. App. LEXIS 942 (Tex. 1968).

Opinion

OPINION

DICE, Judge.

The offense is robbery by assault; the punishment, twenty years.

*326 The indictment charged that the appellant did by assault and violence fraudulently take from the person and possession of Irene Haynes “one (1) television set, and twenty and no/100 ($20.00) dollars current money of the United States.”

Appellant moved to quash the indictment on the ground that the allegation, “one (1) television set” was an insufficient description of the property, under the requirements of Art. 21.09, C.C.P.

Art. 21.09, supra, provides, in part, as follows:

“When it becomes necessary to describe property of any kind in an indictment, a general description of the same by name, kind, quality, number and ownership, if known, shall be sufficient * * ⅜»

In passing upon the sufficiency of the description of property in indictments, in light of the statute, Art. 21.09, supra, this court has upheld as sufficient the following : “ ‘One watch and one pocketknife * * * ’ ”: Grissom v. State, 40 Tex.Cr.R. 146, 49 S.W. 93; “‘* * * Four dollars in money, two knives, and one ring’ ”: Campbell v. State, 61 Tex.Cr.R. 504, 135 S.W. 548; “ 1 * * * one suit of clothes, of the value of $10’”: Baldwin v. State, 76 Tex.Cr.R. 499, 175 S.W. 701; “ ‘ * * one bale of seed cotton, of the value of $100’ ”: Tolbert v. State, 84 Tex.Cr.R. 159, 205 S.W. 987; “ * * * one automobile tire of the value of $3.50 * * *”: Young v. State, 139 Tex.Cr.R. 509, 141 S.W.2d 315; “‘one camera * * *; Beland v. State, 160 Tex.Cr.R. 351, 271 S.W.2d 430.

We hold the allegation, “one (1) television set,” in the instant indictment a sufficient description of the property. Appellant’s ground of error is overruled.

In his second ground of error, appellant insists that reversible error was committed during the trial by the introduction in evidence of extraneous offenses. It is insisted that such was reversible error, particularly in view of the court’s action in granting appellant’s motion in limine to instruct the attorneys for the state and their witnesses to refrain from mentioning any facts or circumstances tending to connect appellant with any extraneous crimes.

In order to appraise the ground of error it should first be noted that on her direct examination the injured party testified that on the date alleged the appellant came into her place of business and, by assault and violence, took from her possession $20 in money and one Motorola television set. She also related that twice before she had seen the appellant in her store but that he had never done business with her.

On her cross-examination by appellant’s counsel, the following transpired:

“Q Mrs. Haynes, did you report this robbery to the police officers? A Yes, sir. Immediately as I walked to the front of the store.
“Q And this occurred at 2:15 in the afternoon? A Just about that time, yes, sir.
“Q Did they come pretty quick ? A Yes, sir.
“Q Did you give them a description of the person that robbed you? A Yes.
“Q Do you remember what description you gave them at that time? A Well, he was a young man in his early twenties and did not wear glasses, and that particular time he wore a red checked shirt, had on dark trousers. He was dressed differently each time he came, but he was the same person identically I identified when he came over this third time as he came over- the counter as it was when he walked around the counter and approached me [sic].
* * *
“Q I believe you testified that you had seen him before? A Twice before.
*327 << ⅝ ‡ ⅝
“Q Mrs. Haynes, you say that he took you by the arm to the register, did he have any weapons with him? A I didn’t see a knife the last time but the two previous times he showed a knife and pulled it on me. [Emphasis, supplied.]
“MR. CHITWOOD: Your Honor, I move for a mistrial at this time based upon the answer of the witness there; it’s extraneous, and not responsive to the question.
“THE COURT: He asked you if he had a weapon.
“MR. CHITWOOD: She brought in some other occasions. I think we are entitled to a mistrial.
“MR. CAPERTON: It’s responsive to the question.
“THE COURT: Motion denied, set down [sic].
“A He came over the counter on his feet. He did not show a knife at that time but previously he had a knife each time and in his hand, forcing me with the other arm and hand as he showed me this knife in the other one.
“Q Mrs. Haynes, do you remember when these other times that he came into your store were? A Do I remember when they were?
“Q Yes, ma’am. A Within two or three weeks before; I don’t know the exact date because I tried to forget each time.
“Q Well, he came out three times within three weeks? A Last time was just too much.
* * *
“Q If it were shown that this defendant was not the one who had come into your store before, would you then say you’re mistaken about him coming in this time? A No, sir.
“MR. CAPERTON: I object to him saying that.
“A I saw him three times and the way he threatened me I wouldn’t ever forget it.
“MR. CHITWOOD: Judge, the answer wasn’t responsive to my question.
“THE COURT: Well, I know, but you asked the question. You say if it were shown that he was not the boy that came in before would you then think you would be mistaken and she said she couldn’t be mistaken.
“MR. CHITWOOD: All right.
* * ⅜ >>

While that portion of the witness’s answer: “but the two previous times he showed me a knife and pulled it on me” was unresponsive and tantamount to evidence of extraneous offenses, no request was made by appellant for an instruction by the court to disregard the testimony. This it was incumbent upon him to do to preserve the error. Perkins v. State, Tex. Cr.App., 213 S.W.2d 681; White v. State, 164 Tex.Cr.R. 416, 299 S.W.2d 151; Paredes v. State, Tex.Cr.App., 368 S.W.2d 620. We do not agree that, under the record, an instruction by the court could not have cured the error.

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Bluebook (online)
428 S.W.2d 325, 1968 Tex. Crim. App. LEXIS 942, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mays-v-state-texcrimapp-1968.