Shelton v. State

10 S.W.3d 689, 1999 Tex. App. LEXIS 7331, 1999 WL 974156
CourtCourt of Appeals of Texas
DecidedOctober 4, 1999
DocketNos. 07-98-0110-CR to 07-98-0115-CR
StatusPublished
Cited by10 cases

This text of 10 S.W.3d 689 (Shelton 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
Shelton v. State, 10 S.W.3d 689, 1999 Tex. App. LEXIS 7331, 1999 WL 974156 (Tex. Ct. App. 1999).

Opinion

JOHN T. BOYD, Chief Justice.

In each of these six cases, consolidated for trial, a jury found appellant John Everett Shelton guilty of aggravated robbery. At the punishment hearing, appellant pled true to the single enhancement paragraph contained in each indictment and was sentenced by the jury in each case to 40 years confinement in the Institutional Division of the Texas Department of Criminal Justice. In this appeal, and in six issues, appellant challenges his convictions. Finding each issue to be without merit, we affirm.

The nature of appellant’s challenges requires that we discuss the facts in some detail. We will discuss each offense separately and sequentially.

The February Jh 1997 robbery of the Town & Country store in White Settlement

According to Marguerite Aline King, an employee of the Town & Country store, on February 4, 1997, at about 3:00 a.m. she was working alone when a man came into the store and robbed her. He was wearing dark clothing and “[h]ad a stocking cap on, ... a red mask, pulled down like all [sic] one piece ski type.” He was carrying a gun which she described as having “a long barrel with an extraordinary big round hole at the end of it. Basically kind of a big long black gun.” More specifically, she described the weapon as a “Luger,” which, later testimony revealed, is a semiautomatic pistol.

With respect to the robbery, King testified the man “had the gun out and he was telling me not to look at him, to hurry up, he wanted the money, hurry, hurry.” As she was getting the money, the man “suddenly [ ] flipped up his mask, stuck his gun in his waistband and took off out the door.” At the time he did so, she averred, he was only about three feet from her, she was able to see his face and noticed that he had a grayish beard. After he left the store, she said she did not see any vehicle nor did she hear one. King immediately called 911 and police officers arrived shortly thereafter.

About a month and one half later,1 King was contacted by the White Settlement Police Department and asked if she would come down and see if she could identify a suspect. When she arrived at the police department, she was shown a photographic lineup of six males, one of which was appellant. After looking at the photos, she was unable to make a positive identification, but there was one photograph she “kept going back” to. She then viewed the store video of the robbery at the same time looking at the photo spread. After doing so, she circled appellant’s picture and wrote “[t]his is him.” Additionally, at the time of the trial, King identified appellant in open court as the malefactor.

The February 22, 1997 robbery of Eckerd Drug in Haltom City

On February 22, 1997, Iva Compton, an employee of Eckerd Drug, was working [692]*692the 10:30 p.m. to 7:00 a.m. shift when a man approached her, took a gun out and said, “I need you to give me your money out of the register.” She testified that her assailant was wearing black clothes, black gloves, black hat, “kind of wraparound glasses,” and had a black gun. After she emptied the register and “the till” and gave the money to him, he ordered her to lie on the floor and he left. She immedh ately notified other store employees who were in the back and the police were contacted.

Compton averred that the robber’s voice sounded like that of a white, middle-aged male. She testified that about a week to ten days after the incident, while she was working at the store behind the counter and at the register, she again saw the man who robbed her and, she said, her “hair stood on end ‘cause I knew it was the same man.” This time, she said, he was accompanied by a “very attractive black lady, probably five-six, five-seven, well dressed.” When queried as ■ to why she knew the individual was appellant, she replied that even though his appearance was not the same, appellant was the '‘same height, same build, same voice, same mannerism.” Compton said appellant’s presence made her feel “uncomfortable” and appellant came to the counter and said “[y]ou seem to not feel well, dear.” A conversation between them then ensued in the course of which appellant suggested that Compton should either go home or see a doctor. With the comment “maybe I should,” she gave appellant his package, and he left the premises. That exchange made Compton even more uncomfortable because, she reasoned, “no one else would be asking questions like that.”

During her cross-examination, Compton testified that the gun used in the robbery had a round barrel that looked to be about eight to ten inches in length. Although she had identified appellant as her assailant from a photo spread, she was unable to identify him in open court- as the culprit.

The February 24, 1997 robbery at the Stop^rir-Go in Arlington

John Henry Underwood, an employee at the Stop-n-Go, testified that he was working the 11:00 p.m. to 7:00 a.m. shift on February 24, 1997, when “a gentleman came into our store and robbed us.” The robbery took place at about 2:30 a.m. when Underwood was sitting in front of his register with a headache and a stomach ache and his head bowed. Another employee was working about ten feet from Underwood. There was an entrance about two or three feet from the register. Underwood noticed a man already inside the door with a gun in his hand. According to Underwood, the man was about five-six or five-seven in height, wearing a black hat, black sunglasses, and what appeared to be a black leather jacket. Underwood testified that he was unable to see the man’s face fully because “he had some [black] form of' covering that came up to just under his nose.” He also said that “it looked like there was some facial fair [sic] from the éxposed área on his face” which appeared to be “kind of graying, like the facial hair of an older gentleman.”

With regard to the gun the interloper possessed, Underwood averred that it was a large caliber revolver with a barrel somewhere around six inches in diameter. The man pointed the gun at Underwood’s chest and told Underwood to give him the money. Underwood was then instructed to lie face down on the floor and the man left. Underwood’s fellow employee then pressed his security “pendant” and the police arrived on the scene about five to ten minutes later. Underwood never identified appellant as the man who robbed him.

The February 24, 1997 robbery of a Texaco Food Mart in Arlington

In the early morning hours of February 24, 1997, Texaco employee Brenda Kay Fuselier was accosted by a masked man who pointed a pistol at her and asked her [693]*693if she wanted to get shot. He then told her to go behind the counter and “pull the money out of the drawer.” She described the man as a white male, about five foot three with gray hair, glasses, “a hood on— a hat on. He had a black jacket, looked like a leather jacket, I wasn’t for sure.” Although she said his appearance had changed, during trial Fuselier was able to identify appellant as the robber.

The February 26, 1997 robbery of Lucky Lady Fina in Arlington

Amanda Young Hernandez testified that on February 26, 1997, she was working at the Lucky Lady Fina in Arlington. About 11:45 p.m., a man came up to the counter, put a gun in her face, and told her to give him money. Earlier that evening, a regular customer had come by and given her some information which caused her concern.

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Bluebook (online)
10 S.W.3d 689, 1999 Tex. App. LEXIS 7331, 1999 WL 974156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shelton-v-state-texapp-1999.